§ 3.30 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
My Lords, I beg to move that the Report be now received.
§ Moved, that the Report be now received—(Lord Kirkhill.)
§ On Question, Motion agreed to.
§ Clause 1 [Licensing boards]:
§ Lord KIRKHILL moved Amendment No. 1:
§ Page 2, line 1, leave out subsections (4) to (7) and insert—
§ (4) Subject to subsections (9) and (13) below, a licensing board shall consist of not less than one-quarter of the total number of members of the district or islands council and in no case shall consist of less than five such members.
§ (5) Where a district or islands are a is divided into licensing divisions, then unless the Secretary of State otherwise directs, not less than one-third of the members of the licensing board for a licensing division shall be councillors for a ward or electoral division within the area of the licensing division.
§ (6) The members of a licensing board for a district or licensing division of a district shall be elected at the first meeting of the district council held after the ordinary election of that council in 1977 and, in the case of subsequent elections, at the first meeting of the council held after each subsequent ordinary election of the council.
§ (7) The members of a licensing board for an islands area or licensing division of an islands area shall be elected at a meeting of the council of the islands area to be held on a date between 16th May 1977 and 30th June 1977 to be determined by the council, and, in the case of subsequent elections, at the first meeting of the council held after each subsequert ordinary election of the council.
§ (8) The term of office of members of a licensing board shall begin with the day of their election under subsections (6) and (7) above and shall end on the day of the next election of members of the licensing board, but any member of a board shall be eligible for reelection.
§ (9) A member of a licensing board who has ceased to be a member of the authority by whom he was appointed by reason of an ordinary election to the council of that authority shall continue to be a member of the board until the first meeting of the council after the election.
§ (10) Any casual vacancy arising in a licensing board from death, resignation, disqualification or other cause may be filled by the election of a duly qualified person at the first meeting of the appointing council following upon the vacancy, and members so elected shall hold office until the date of the next meeting for election to the board.
§ (11) If a licensing board is not elected at the time at which it ought to be elected, or an insufficient number of members is elected for a board, the Secretary of State may by order provide for the holding of a fresh election or elections for supplying such fault or deficiency in election at such times and in such manner as he may think expedient.631
§ (12) No election held in pursuance of this Act shall be deemed to be vitiated in consequence of any technical defect in the proceedings which has not been prejudicial to the interests of any party concerned in such election.
§ (13) For the purposes of any proceedings at the quarterly meeting in March in the final year of office of members of a licensing board which are not finally disposed of before the expiry in that year of the term of office of the members, the members of the licensing board in office at the date of the said meeting shall, notwithstanding such expiry, be deemed to constitute the licensing board.
§ The noble Lord said: This Amendment would restore the responsibility for acting as members of licensing boards to district and islands councillors, as was the Government's original intention. The Clayson Committee considered this matter very fully. The Clayson Report makes it clear that the Committee thought it desirable that the local authority itself should act as the licensing authority but that they accepted that there were practical difficulties in this course of action. What they recommended, therefore, was a system which was workable and would establish licensing boards to be serviced by district and islands councils and their officials.
§ The Bill as brought from the other place implemented this recommendation and I hope that it can now be restored to its original form. We have decided that licensing decisions should be in the hands of elected members. This recognises that the decisions are not of a kind suitable for a court of law, and that the right people to make the decisions are those who are elected to represent the interests of the local population seems to us selfevident. We have, of course, been concerned, as I mentioned in Committee, to introduce safeguards to lessen the risk of improper behaviour. We have made some changes which we hope will be useful. Clause 19 creates a new criminal offence of canvassing of members of the licensing board by the applicant. We hope that this should prove effective in ruling out any efforts to influence decisions made by licensing boards. And Clause 39 makes provisions for the exercise of rights of appeal to the sheriff and sets out the grounds of appeal as well as the powers of the sheriff on upholding an appeal.
§ Clause 39 seems to me to provide a further reason for preferring local councilors 632 to justices of the peace as members of the licensing boards since it would be an odd argument and a peculiar arrangement which involved the appointment of board members by the sheriff principal or the sheriff under Clause 1 and an appeal to the sheriff under Clause 39. I think that it is better to define the respective roles of the local authority and the sheriff, as the Bill will do in Clauses 1 and 39 if my Amendment is accepted. We are satisfied that directly elected members can do what is required to operate the licensing system.
§ I am bound to point out, though I would not wish to make it a major part of my argument, that the subsections added to the Bill in your Lordships' Committee are not satisfactory. There is no ordinary election of islands councils in 1977; the next ordinary election in their case is in 1978. That is one defect, and it highlights an illogicality in the Amendment as introduced by the noble Lord, Lord Balerno, in Committee. If justices of the peace are appointed, there is really no need to tie the periods of their appointment to elections of local authorities. But as I say, that is a small part of my argument. I rest my case on the points I have made and I hope that the House will agree to revert to the original wording. I beg to move.
§ Lord BALERNO
My Lords, the noble Lord, Lord Kirkhill, threw down the gauntlet in his very first words when he said that licensing decisions should be the responsibility of the elected representatives. My whole feeling is to the opposite; that the elected representatives as such are not the fit and proper people also to adjudicate on the award of licences. If the Amendment is accepted, the licensing board will become just another committee of a local authority. The members of it will be drafted on to it in precisely the same way as they are drafted on to other committees of the local authority, and their decisions are bound to reflect their mutual preferences, partial affections and antagonisms.
Objection was taken to this proposal both by the Scottish Trades Union Congress and the Church of Scotland, both of which significantly said they thought that this should be within the jurisdiction of the sheriff, and the Church of Scotland 633 said that if it was not within the jurisdiction of the sheriff, it should be within the jurisdiction of the justices of the peace. The Clayson Committee certainly recommended what Lord Kirkhill has put forward now, but they did so with some hesitation, and they did it knowingly before the Bill to reform the local justice of the peace courts in Scotland was in existence. They did, however, know that there were proposals along these lines and they entered a very strong caveat at that point.
The Bill, which passed through your Lordships' House and which was quite thoroughly debated, set up the district courts based on a new conception for Scotland of the justices of the peace. We are trying by that Bill to bring our justices of the peace and our district courts up to the same level that has been enjoyed for so long in England. In Scotland the justices of the peace were a very pale shadow of the justices of the peace in England.
This measure now puts the onus on the sheriff to supervise the courts and, still more important, the justices of the peace are in future to give an undertaking—in fact, they have given it and have started to carry it out—to take courses so that they can better execute their job. The justices of the peace are being divided into those who have taken the course and those who have not as those who have been educated properly in their duties are the ones envisaged in the provision which Lord Kirkhill seeks to delete and for which he has produced a substitute.
This is a subject in which I have had a considerable interest for a long period, since I first served on the licensing committee chaired by the noble and learned Lord, Lord Guest. That takes us back 16 or 17 years. I was at that time also a member of a local authority. On that local authority—I was also a member of a licensing court—I could suspect that malpractices were taking place. This was at a time when the brewers were trying to buy up every possible licence and the malpractice that was taking place fairly blatantly at that time, though it took a little time to prove it, was that a licence would be granted to somebody who was a relative or a friend of a member of the local authority, and two years later that licence would be sold to a brewer. That 634 happened not once but several times, and it was naturally a very difficult thing to prove. When I raised my suspicions about this in the committee presided over by the noble and learned Lord, Lord Guest, I was rightly put down because I could adduce no legal proof of any malpractice whatsoever, though I had the sympathy of some other members of the committee.
The ink was hardly dry on the report of the Guest Committee when a major case of malpractice came up it the City of Glasgow. This was a fairly bad case involving a member of the Glasgow Corporation. Since then, there have been several cases in Scotland of malpractice by local authority members. I shall not go into the details but will just say that they have caused some embarrassment to the Government owing to local authority by-elections having had to be held with unfavourable results to the Government.
The noble Lord, Lord Kirkhill, made the point that it is important to have local knowledge on the courts or the boards as they are now to be called. If justices of the peace are appointed, about half of them will also be members of the local authority, so that the local authority view will be presented. But that will be balanced under my proposals by a number of justices of the peace who will have been trained in the law and in procedure. I believe that that will make for a much better balance and judgment of this rather difficult problem.
There is one other major reason which I gave for the proposals that I made in Committee and which are now incorporated in the Bill. It is that in Clause 123 the local authorities are being given power to grant licences to themselves. This, as I was instructed by the noble and. learned Lord, Lord Guest, many years ago, is against an important principle, at any rate in Scottish law, that one cannot be a judge in one's own cause. This provision makes the local authority a judge in its own cause. I believe that that is something that should not be allowed. I have taken up much too much time on this point but it is a subject into which I was unwillingly pitchforked 17 years ago, as I said, and I have been unable to shake it off. I hope to do so soon.
Lord CAMPBELL of CROY
My Lords, this Amendment affects the composition of the new Scottish licensing boards proposed by the Government. There has been criticism—with which I joined—about the composition originally proposed by the Government. The suggestion was that the boards should consist entirely of councillors. My noble friend Lord Balerno has given some of the reasons for the opposition to that proposal. In Committee, I and other noble Lords supported my noble friend on this and, in the Conservative Party, there has been a free vote in another place and also here. My noble friend's views were persuasive and he got a majority in the Committee. But I must point out that the change which my noble friend suggested and which the Government are now proposing to reverse would have meant that the whole character of the licensing boards would have been transformed and this affects the rest of the Bill. Therefore, I feel that if my noble friend were to insist on opposing the present Amendment at this very late stage, this would be not a revision but something which went a good deal further. The Bill would have been framed differently in later clauses and, indeed, should in many cases now be framed differently. So I hope that my noble friend, who has made his case both in Committee and again here today from his wealth of experience in this field, will not insist on pressing his opposition to the Amendment.