Civic Government (Scotland) Bill [H.L.]

HL Deb 15 December 1981 vol 426 cc109-61

4.28 p.m.

The Minister of State, Scottish Office (The Earl of Mansfield)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do now again resolve itself into Committee.—(The Earl of Mansfield.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MURTON OF LINDISFARNE in the Chair.]

Schedule 1 [Licensing—Further provisions as to the general system]:

Lord Ross of Marnock moved Amendment No. 30: Page 86, line 25, after (" when ") insert (" reasonably ").

The noble Lord said: It is not going to be easy to get a licence for some of these so far known occupations and pursuits, because we have not yet discussed even a single one of them. It is surprising that the licensing authority, having made out and delivered a licence to every person to whom a licence is granted or whose licence is renewed, shall, when requested by any person and on payment of such fee as they may charge under paragraph 16 below, make out a duplicate of any licence … ".

—" any person ".

When we begin to appreciate the kind of people getting licences—there is the itinerant metal dealer, the second-hand dealer—it opens up quite an interesting field. The phrase is "any person" and there is no limitation in the schedule—any person on request can get a duplicate of a licence. And there is no latitude given to the licensing authority; the word is "shall". So I think there should be a certain amount of limitation on it. Surely the person asking for the duplicate licence should give a reason for it. I am not terribly happy about my own amendment, but the point was so obvious, that some limitation should be put in, that I put down this amendment to get the Government's thinking about it. I beg to move.

The Earl of Mansfield

I am not by any means sure that the addition of the word "reasonably" is going to he very helpful to the local authority, as there can clearly be argument as to what is or is not reasonable in any particular set of circumstances. But I have sympathy with the noble Lord's intention, which is to restrict the obligation of the licensing authority so that they do not of necessity have to provide a duplicate licence to anyone who asks for it. I think it is arguable that only the licence holder himself, or his authorised agent, should have any need for a duplicate. Anybody else who has an interest should be satisfied with a certified copy of the register of applications provided for in paragraph 15 of this schedule. So I am inclined to accept the spirit of the amendment by considering an amendment to qualify the duty of the licensing authority to provide a duplicate licence to any person, to make it clear that such a duty applies to the provision of a duplicate only to the licence holder or his representative. So if the noble Lord, Lord Ross, would be good enough to withdraw his amendment for now, I will take stock of the matter.

Lord Ross of Marnock

I think that is very sensible and reasonable. If the noble Earl wants an easy way out of the difficulty, change the "shall" into "may", that in itself would give a certain amount of latitude to the local authority. In view of the noble Earl's undertaking, I am very happy to withdraw the amendment.

Amendment by leave withdrawn.

Lord Ross of Marnock moved Amendment No. 31: Page 86, line 40, after (" relates ") insert (" and its duration ").

The noble Lord said: This is a very reasonable amendment which I am perfectly sure is going to meet with the good wishes of the Government. When the licence is granted, the authority "shall specify the activity to which the licence relates and otherwise shall be in such form as the authority may decide". I think it should also specify the duration of the licence. The duration is mentioned later on, but I think on this document, the actual licence itself, the duration should be specified. I beg to move.

The Earl of Mansfield

As the noble Lord knows, licences will be in force for three years. I accept the noble Lord's contention that it will be of benefit if the terminal date of the licence is shown upon it. I am happy to accept the amendment.

On Question, amendment agreed to.

4.35 p.m.

Lord Ross of Marnock moved Amendment No. 32: Page 86, line 42, leave out sub-paragraph (8).

The noble Lord said: I am flushed with success, having had the first amendment accepted in principle and the second amendment actually accepted. I had better watch myself carefully and warn the Minister not to accept the next one. I am seeking to leave out sub-paragraph (8) for this reason. The Secretary of State, after all this, is, by regulations made by statutory instrument, going to prescribe model conditions for licences. Could not this have been left to the local authorities themselves? Does this require to be in legislation? And who asked for this? The other question that arises is, if the Secretary of State is going to produce model conditions—remember it is not mandatory; he may or he may not produce them—what is going to be the force of these regulations? Have local authorities got to look at them and then just tear them up, or is it just going to be a guide which they may or may not accept. Is there any point in this being in legislation? I think it clutters it up. There is nothing to prevent the Scottish Office doing it, if they want to do it, at the request of the local authorities, but where there is no provision in relation to compliance of the local authorities, and they do not have to accept the model conditions for licences which the Secretary of State may prescribe, frankly I do not see very much point in it. I would be happy if the Minister would say that he is prepared to think about it. I beg to move.

The Earl of Mansfield

The Committee will have observed that the noble Lord did not move his paving amendment to this particular amendment, which would have been Amendment No. 27. I say that because one without the other scarcely makes sense. In fact, this provision was introduced partly as a result of the working party and also as a result of comments received following the publication of the consultation document. Representations were made, and there were quite a number of them; that is, representations on the provisions of the White Paper, that the licensing system which this Bill seeks to set up could lead to widely varying licensing conditions being imposed throughout the country. And these variations might well be unnecessary because they might relate to circumstances and matters which were uniform throughout the country. So this might lead to a feeling of discrimination between different areas.

It is important that people conducting business in more than one licensing authority area are confident that the same business will not be subject to different conditions, conditions which vary unnecessarily from area to area. This, I am sure noble Lords would agree, would be an unjustifiable restriction on the conduct and indeed growth of businesses. So the provision in sub-paragraph (8) permits but does not compel the Secretary of State to make model conditions, so that licensing authorities will have regard to them when imposing conditions on the grant of licences. It is the intention that these model conditions set out a set of core conditions relating to basic matters which are of such a nature as do not vary according to which part of the country they are in.

Before making any regulations setting out model conditions on any licensing activities it is the intention of the Secretary of State to consult with the Convention of Scottish Local Authorities and appropriate trade interests as to what matters should be covered by the model conditions and in what manner.

In this way, we hope that model conditions can be drawn up which will meet with general acceptance. In this way, there will be a core set of conditions on basic matters on which there is no need for variation according to geography, but local authorities are still free to impose additional conditions that they consider necessary to meet the particular local needs and circumstances. The noble Lord, Lord Ross, is perfectly right. The model conditions will not be mandatory and the licensing authority need only have regard to them when attaching conditions. But we hope from our intended discussions with the convention that there will result model conditions which will be accepted by the licensing authorities to be benefit of not only the authorities themselves but also the licensed businesses. I cannot, of course, say at this stage whether we or the convention will want to specify model conditions for all authorities. We shall probably take things slowly and concentrate at first on a few priority areas, such as boat-hire, where we and the convention are agreed that there is an urgent need.

Therefore, I would remind the noble Lord, Lord Ross, that the working party itself in paragraph 12 recommended that there should be power to lay down a guide or code of practice. That is what we are doing. The aim is to help licensing authorities to impose reasonable uniformity and public awareness of what we are doing but, as I have said, the model will not be binding. In those circumstances, it is, I am afraid, third time unlucky for the noble Lord, Lord Ross, and I feel bound to resist this particular amendment.

Lord Ross of Marnock

How disappointing! The Minister of State rather defeats himself in his argument. He starts off by saying that it is desirable in respect of this that we should have the same kind of conditions throughout the country. First of all, he leaves it entirely to the local authorities as to whether they will pass a resolution to have licensing for many of the subjects which we have not yet discussed. Indeed, one was mentioned by the Minister of State, namely, boat licences. So we start on the basis that, if it is to be left to the local authorities as to which of the activities are to be licensed at all, there is no guarantee that there will be any uniformity throughout the country or any sense of fairness. There may be some very frustrated people who cannot get licences, or who do not have the authority of a licence to carry on some kind of activity but who can see other people coming into their activity, probably to their detriment, who are not subject to any conditions of any kind.

Then we come to—what did he call it?—the core set. Very few are mandatory in the Bill as it stands at present. I should have thought that it would be desirable, since it was felt necessary by the Government that these things should be licensed—irrespective of what the local authority felt—and that there should be a national system for them, that the Minister should have gone the whole hog and taken the power to say that local authorities would comply; that he would issue for the local authorities the conditions that are laid down.

This is a very long and complicated schedule. We are talking here of a generalised non-mandatory power that has been taken by the Secretary of State. Quite frankly, it does not mean much, if anything at all. It will only be a guide and the local authorities can, according to the statute, just set it aside and say, "We are going to please ourselves; our circumstances are different", and they will prescribe different conditions for different kinds of licences and, we might as well add, for different areas as well, because that will no doubt be in the guide when it comes.

I felt that the generosity of the Minister had gone far enough and that I would get a pretty bleak answer to this amendment. I am prepared to accept it and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.44 p.m.

Lord Ross of Marnock moved Amendment No. 33: Page 87, line 4, leave out (" may be required to ") and insert (" shall ").

The noble Lord said: I beg to move Amendment No. 33. Paragraph 6(2) reads: Reasons for decisions referred to in sub-paragraph (1) above ", and it then says: may be required to be given ", which I suggest should read: "shall be given". There is a very simple reason for that. If your Lordships cast your eyes at the beginning of the previous sub-paragraph of paragraph 6, it says: A licensing authority shall, when required to do so under sub-paragraph (2) below, give reasons in writing ". Then, at sub-paragraph (2), it says: Reasons for decisions referred to in sub-paragraph (1) above may be required ". If we begin with "shall" we must carry on with "shall". If your Lordship's want further proof, let us look at page 90 where it says at paragraph 11(5): A licensing authority shall, when required to do so under sub-paragraph (6) below, give reasons in writing for arriving at any decision ".

There have been a great many comings and goings concerning "may" and "shall" and al I sorts of phrases that just do not add up. I do not know what has been happening at the Scottish Office over this Bill. I think that they could have taken another month over it and made it a far, far better Bill. It may not have been their responsibility. I think that it is unfair to blame the draftsman all the time, but somebody should have read the Bill before it came to this House. Anyway, I beg to move.

The Earl of Mansfield

Except for the last few sentences of his remarks I agree with the noble Lord, Lord Ross, and I am happy to accept the amendment.

On Question, amendment agreed to.

Lord Ross of Marnock moved Amendment No. 34:

Page 87, line 8, at end insert— (") Where under sub-paragraph (2) above a licensing authority give reasons they shall supply copies of those reasons to all other parties who would have been entitled under this paragraph to require reasons.").

The noble Lord said: I beg to move Amendment No. 34. I am suggesting in this amendment that where the: licensing authority give reasons they shall supply copies of those reasons to all other parties who would have been entitled under this paragraph to require reasons ". So people who have objections or who are interested from the point of view of even taking their objections to appeal, should be given copies of the other reasons for the decision. I think that this was in the draft Bill. If we are to make the appeal procedure sensible then we must give the people who have an interest in it the fullest information in respect of what has happened to their objections, because there is another possibility later on. I beg to move.

The Earl of Mansfield

This amendment would create a great deal of extra and, I consider, unnecessary additional work for the licensing authority. The paragraph requires the authority, when requested within 48 hours of their decision by any competent party to the licence application, either as applicant or objector, to provide written reasons for their decision to the party so requesting it. I regard it as being unreasonable to require the authority to copy their written reasons to all other parties, even if they have not asked for them.

It has to be remembered that the public in general can object to a licence application within any prescribed classes, so the authority could find themselves having to copy their reasons to a large number of persons, a good proportion of whom may not really be concerned to receive them. I believe that the provisions available to all parties to request copies of reasons are sufficient to ensure that their interests are safe-guarded. So this proposal would, as I have said, create further unnecessary work for the licensing authorities. It would, therefore, create extra expense for the applicants and be of no very definable advantage to anybody.

Lord Ross of Marnock

The fact that people have a right of appeal against the decision of the licensing authority—even objectors—means that it is desirable that they should have an opportunity to see the decision and the reasons given by the authority. Bearing in mind that this 48 hours business—which I think is far, far too short—is in itself a restriction, if the licensing authority is to give reasons to one, it should give reasons to the others as well. The noble Earl said that it might well be the public at large; the public at large have to put forward their objections in writing and even be heard, or anyway be given a chance to be heard, by the licensing authority. I do not think that it is a question of 500 or 600 people turning up to do so; they would do it through a spokesman or agent. If that agent is not present at the time of the decision—in fact, the decision might be taken at an adjourned meeting, not necessarily on the same day, and then he has to learn that there are only 48 hours in which to object—he might be very happy at the fact that someone had requested reasons and that he would get the benefit as well. If you are going to give reasons to one, you should give reasons to the others.

Later on in the Bill, the sheriff (even without the 48 hours' limitation) in addition can ask for reasons when the matter goes to appeal. I think that the Minister has given a very disappointing answer. He spoke about being concerned about the licensing authority, which in most cases will be the district authority and in some cases the islands authority. All this complexity has been wished upon them by this legislation. It is a very, very complicated schedule. I think that far too much is being made of this particular complication. It follows from what the Government are doing and from what they say later on about the right of appeal that you can only appeal if you know the reasons for turning down your objections. I think that I shall return to this at another stage. Meantime, I am quite happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 35: Page 87, line 30, leave out (" 6 weeks ") and insert (" 3 months ").

The noble Lord said: This amendment is to leave out "6 weeks" and insert "3 months". This is the question of a temporary licence which the licensing authority may grant. I think that six weeks is far, far too short for a temporary licence, bearing in mind the time taken to make your decision, to post it and send it off and then to make due allowances for Christmas or the New Year. But they are not mentioned in the Bill; they were mentioned in the previous Bill together with statutory holidays and the rest of it. I do not think that six weeks is long enough for a temporary licence.

From the point of view of the convenience of the authority itself, it would mean that it would need to convene another meeting to consider the lapsed temporary licence. So I suggest that we substitute "not exceeding 3 months". It does not mean to say that it will be three months, but "not exceeding 3 months" would be very much more sensible. I beg to move.

The Earl of Mansfield

I am not sure why the noble Lord thinks that six weeks is far, far too short. He spoke about Christmas and other festivities. In effect, paragraph 8 says that: (1) A licensing authority may grant a licence to have effect for such period not exceeding 6 weeks from its being granted ". So the actual procedures of getting the licence have nothing to do with this. This is concerned with the duration for which a temporary licence will run. The purpose of it is to take care of occasions when an applicant will want a licence for only a short duration. An example might be a licence to run during such a period as the Edinburgh Festival, or some very temporary festival of that nature. To require the normal procedures, involving sending notification to neighbours and inviting and considering objections, was thought to be far too ponderous and, indeed, unnecessary for a short-term activity.

I suggest to the noble Lord, Lord Ross, that if one is to short-circuit the more normal procedures, one does not want—particularly bearing in mind possible nuisances—to have a period which will last too long. Therefore, it was felt that the decision whether or not to grant a licence in such cases was essentially a matter for the licensing authority, subject to the views of the police. It is worth pointing out that there are no provisions for public objection to an application or for appeal against a refusal to grant a licence. In those circumstances, it was thought appropriate to limit the duration of a temporary licence fairly drastically, and the six-week period seemed about right.

There is nothing magical about six weeks, but if a nuisance or disturbance is created, I would ask the noble Lord to consider that neighbours might tolerate a disturbance for six weeks, but three months might well be intolerable. So unless the noble Lord can adduce some reasons as to why three months is preferable to six weeks, I think that we have it about right.

Lord Ross of Marnock

I think that the Government are only guessing here. All they have suggested is something about the Edinburgh Festival. For that matter, six weeks might be too long for that. But there may be instances where something may happen or develop over the whole summer period, perhaps for two months. The whole point about "not exceeding 3 months"—which is how the amendment would have the line read—means that it is left to the licensing authority, which can say a month, a fortnight or a week-end. It is not tied to three months. It may well be that the six weeks will be too restrictive. From that particular point of view, I should prefer that it was a longer period. I think that six weeks is too restrictive; I accept the purposes that the Government suggest—that it might be desirable to have this licence for a shorter period and therefore lose all the rights of objections, appeal and everything else, but I am quite satisfied that six weeks is far too short. It may well be that three months is too long. I can return to that at the next stage.

Meantime, during now and the next stage, the Government can search the calendar for all the notable events that will take place in Perthshire. There may be a chip van convention around Scone that will last seven weeks! It may well be that we shall get to hear of something that is to be held in a place nearer the heart of the noble Lord, Lord Lyell, who sits on the Front Bench beside the Minister of State at the present time. It may well be that we shall have an international football festival—the Word Cup—played in Scotland. It is usually played in the country of the winner, and we are going to win it in June. With its preliminaries, that might last longer than six weeks. We want to be absolutely sure of these things at present.

On the understanding that I shall return to this with another figure and that I am perfectly sure the Government, and certainly the noble Lord, Lord Lyell, will think about this for the next few months. I shall be very happy to withdraw this particular amendment that does not commend itself to the Government.

Amendment, by leave, withdrawn.

5 p.m.

Lord Ross of Marnock moved Amendment No. 36: Page 87, line 39, after first (" and ") insert (" where appropriate ").

The noble Lord said: The Government here lay down that they are going to consult the Chief Constable and the fire authority. There may be no need to consult the fire authority, so why should we put it in and make it mandatory that they consult the fire authority? Here I have words that I think should meet with the Government's idea of what is fitting. They are just, "where appropriate", the fire authority. I beg to move.

The Earl of Mansfield

The noble Lord will recollect that when we discussed Amendment No. 14 last week I undertook to look at all these clauses and paragraphs where the fire authority is mentioned. What I undertook to do was to re-examine the possibility of limiting the duties of the licensing authority to circumstances which might in fact be more appropriate than in all circumstances. Since the noble Lord was kind enough to refer to my family home, I can think of an example where perhaps it would not be appropriate to refer to the fire authority, because we are to have a Bible-reading convention for a week.

Lord Ross of Mansfield

Surely hell fire comes into that.

The Earl of Mansfield

I am not sure whether the noble Lord has been asked to open it, but I wait with interest. In the circumstances, that would surely be inappropriate for the fire authority. Having regard to the terms of my undertaking, perhaps the noble Lord would withdraw his amendment for now.

Lord Ross of Marnock

The Minister said that he was going to think about this, and he has had a whole weekend to think about it and I had hoped that he could have made up his mind and come here in triumph. The triumph would have been mine, but the glory his, if he had said that he accepted the amendment, but he has not done so. I do not know what he has been doing over the weekend. It may be that he has been polishing up his Bible reading. On the basis of what the noble Earl has said, I am quite happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 37: Page 88, line 6, after (" 17 ") insert (" below ").

The noble Lord said: This is a simple drafting amendment to put in, for the purposes of clarity, "below" after "17". I beg to move.

The Earl of Mansfield

This, as the noble Lord said, is a drafting amendment. As the noble Lord equally well knows, draftsmen go about their strange and esoteric task in a way which I think only they understand. When I first saw this, which was before the weekend, I thought that the noble Lord's amendment probably would do no harm and it might make the schedule easier for laymen and newcomers to read. However, I believe that the draftsmen think differently.

The advice I have had is that the governing provision of sub-paragraph (5) is paragraph (8)(2), which states clearly: This Schedule shall apply with the modifications specified in sub-paragraphs (3) to (5) below", and I must emphasise the word "below". The proposed amendment would, if accepted, form part of sub-paragraph (5) which, in turn, refers to paragraphs 9, 10, 11 and 17, but the effect sought by the amendment has already been achieved by the use of the word "below" in paragraph 8(2).

I understand that there is a well-established drafting convention that the insertion now, for the second time, of the word "below" in the same paragraph would be otiose, as indeed it would if the amendment were to be applied—although the noble Lord does not seem to want to do this—to the reference in paragraph 6 to sub-paragraph (3) of paragraph 8.

Where the drafting convention does allow the use of the word "below", the draftsman has of course used it. For example, in paragraph 9(3)(a), in line 24 on page 88, or in sub-paragraph (6) of paragraph 9, in line 39 of page 88. The answer to the noble Lord, in short, is that the draftsmen do not consider that this would be a desirable amendment, and I must therefore resist it.

Lord Ross of Marnock

I hope that the Minister will ask the draftsman to tell him why the word "below" is not used twice but three times in paragraph 9. At least three times. Indeed, having mentioned "paragraph 17 below" and the arguments put by the draftsman to the Minister of State, which he accepted, that it would be otiose to use it again, I draw attention to the fact that paragraph 9(3)(a) mentions "paragraph 17 below", and he has to repeat in 9(5)(a), "17 below".

However, I am always interested in hearing what a draftsman has to say to justify an additional word in some places and leaving it out in others. I think that, from the point of view of consistency, it would have been far better to be there, especially in a schedule which runs to pages and pages, and paragraphs and paragraphs. Let us know that the paragraph we are looking for is below and not above. I am going to have an interesting time looking at the use of the words "above" and "below" during the next few weeks. However, I am not fussed about it, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock had given notice of his intention to move Amendment No. 38: Page 89, line 36, after (" and ") insert (" where appropriate ").

The noble Lord said: This amendment comes back again to "where appropriate". In view of what the Minister has earlier said, that he is looking at this to find a suitable form of words in suitable places, I do not propose to move this amendment.

[Amendment No. 38 not moved.]

Lord Ross of Marnock moved Amendment No. 39: Page 89, line 40, leave out (" on that day ") and insert (" when the variation of the licence is to be considered ").

The noble Lord said: I suggest that we leave out "on that day". The wording says: an opportunity to be heard by the authority on that day ".

We should instead put in when the variation of the licence is to be considered ".

In the interests of consistency, if the Minister of State would cast his eye down to the last line of this page he will see the words that I have suggested. If it is good enough on the second occasion, to attend and to be heard by the authority when the variation of the licence is to be considered ", it would be far better than "on that day" in line 40. In all these things I am being very helpful to the Government, and I hope to the draftsman. I beg to move.

The Earl of Mansfield

I do not think that the noble Lord is being so helpful in this particular amendment as he would have the Committee believe. Sub-paragraph (2)(a) identifies " the day " as the day when the authority propose to consider the variation. Then we go on to sub-paragraph (2)(b). I really would have thought it obvious that " on that day " in line 40 means the day mentioned in line 34 in the same subparagraph. But when we get to sub-paragraph (3), of course that does not relate to the same thing as is set out in sub-paragraph (2)(a), so of course the draftsman has to put it in again. What the noble Lord by his amendment is putting in is real surplusage, and I do not think it makes the language any clearer.

Lord Ross of Marnock

The Minister is talking a lot of nonsense. If it is good enough the second time it is good enough the first, and he should go back and tell his draftsmen to make up their minds. After all, it might not be " on that day ", as in the phrase that is used. It might be considered over two days, so it might be the second day. Somebody might be summoned and not have the opportunity " on that day " to be heard. It would be far better from the point of view of the authority if we said, when the variation of the licence is to be considered ". That would be more sensible than " on that day Clearly, however, the Government prefer to leave the provision in the sort of muddle it is in, and who am I to persuade them otherwise? They have already shown themselves fairly well muddled over the Bill, and I leave them in that muddle, begging leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock had given notice of his intention to move the Amendment No. 40:

Page 90, line 14, at end insert— (" () Where under paragraph 6 above a licensing authority give reasons they shall supply copies of those reasons to any other party who would have been entitled under this paragraph to require reasons.")

The noble Lord said: This is the repeat of an amendment I moved earlier, to which I received an unsatisfactory answer from the Government. I do not propose to give the Minister of State an opportunity to repeat something unsatisfactory, and therefore I do not propose to move the amendment.

[Amendment No. 40 not moved.]

5.12 p.m.

Lord Ross of Marnock moved Amendment No. 41:

Page 90, line 24, at end insert— (" .—(1) A licensing authority may, on an application made to them in that behalf by a proposed transferee of a subsisting licence and in accordance with this paragraph transfer the licence—

1. (a) to a person proposing to take over the activity to which the licence relates;
2. (b) where the holder of the licence has died before its expiry, to his executor, representative or disponee;
3. (c) where, before the expiry of a licence, its holder—
1. (i) has become bankrupt or has had his estate sequestrated;
2. (ii) has granted a trust deed for behoof of his creditors;
3. (iii) has become insolvent;
4. (iv) has become incapable of managing his affairs;
4. to his trustee, judicial factor or curator bonis;
5. (d) where the licence was held by a company incorporated under the Companies Acts 1948 to 1980, to its liquidator, provisional liquidator, receiver or manager, if he has been appointed before the expiry of the licence.

(2) A licensing authority may, on an application made to them in that behalf by a person other than an individual natural person, substitute another employee or agent of the applicant for the employee or agent mentioned in paragraph 5(6) of this Schedule, and in this and the next following paragraph of this Schedule references to the transfer of a licence shall, unless the context otherwise requires, include references to a substitution under this sub-paragraph. (3) A licensing authority shall refuse an application to transfer a licence if—

1. (a) the person to whom it is proposed that the licence be transferred is not in their opinion a fit and proper person to be the holder of the licence;
2. (b) where the licence relates to an activity consisting of or including the use of premises, the person to whom it is proposed that the licence be transferred in their opinion neither is in possession of the premises nor has a right to possession conditional only upon the transfer to him of the licence; or
3. (c) where the transfer applied for is under sub-paragraph (1)(a) above, in their opinion the holder of the licence is capable of giving his consent to the transfer but has not done so.

(4) A licence transferred—

1. (a) by virtue of sub-paragraph (1)(a) or (2) above shall have effect until it would have expired had it not been transferred;
2. (b) otherwise than by virtue of sub-paragraph (1)(a) or (2) above shall have effect until the next quarterly meeting of the licensing authority and—
1. (i) if no application has been made for its renewal, it shall then expire;
2. (ii) if an application has been made for its renewal it shall continue to have effect in accordance with paragraph 9 above.

(5) A licence transferred under this paragraph shall be held subject to the conditions under which it was held immediately prior to the transfer. .—(1) Paragraph 1 of this Schedule shall apply for the purposes of an application for the transfer of a licence as it applies for the purposes of an application for the grant or renewal of a licence. (2) A licensing authority shall, as soon as an application is made to them for the transfer of a licence, send a copy of the application to the chief constable. (3) It shall be competent for the chief constable to object to or to make representations about an application to transfer a licence and where he desires to make objections to or representations about such an application he shall intimate them to the applicant before the meeting of the licensing authority at which a final decision is to be taken upon the application. (4) In considering an application for the transfer of a licence a licensing authority—

1. (a) shall consider any objections or representations lodged by the chief constable at any time before the meeting of the authority at which a final decision is to be taken upon the application; and
2. (b) may make such reasonable enquiries as they think fit.

(5) A licensing authority shall, before reaching a final decision on an application to transfer a licence, give the applicant and, where he has lodged objections or representations, the chief constable an opportunity to be heard by the authority. (6) A licensing authority shall have complied with subparagraph (5) above if they have invited the applicant and, where the chief constable has made objections or representations under sub-paragraph (3) above, the chief constable to attend and to be heard at the meeting of the authority at which the application is to be considered. (7) A licensing authority shall, when required to do so under sub-paragraph (8) below, give reasons in writing for arriving at any decision of theirs to transfer or refuse to transfer a licence. (8) Reasons for decisions referred to in sub-paragraph (7) above may be required to be given by the licensing authority on a request being made to the authority by the applicant or the chief constable not more than 48 hours after the decision was made. (9) Where, under sub-paragraph (7) above, a licensing authority give reasons they shall supply copies of those reasons to any other party who would have been entitled under this paragraph to require reasons. (10) The period of 48 hours referred to in sub-paragraph (8) above shall not include a day which is a Sunday, Christmas Day, New Year's Day, Good Friday, a bank holiday, a public holiday, or a day appointed for public thanksgiving or mourning. (11) Nothing in this paragraph affects the power of the sheriff under paragraph 17 below to require a licensing authority to give reasons for a decision of the authority—

1. (a) which is being appealed to the sheriff under that paragraph; and
2. (b) for which reasons have not been given under this paragraph.").

The noble Lord said: We come to something much more important and fundamental; namely, the addition to Schedule 1 of a very lengthy series of paragraphs which deal with the question of the transfer of licences. We are here dealing with people holding licences for public entertainments, licences concerning second-hand activities—we will come to that eventually and see how comprehensive that is—with taxi and hire car licences, and it is clear that all sorts of things may happen. I list in this amendment occasions when a licensing authority may … have … an application made to them in … behalf … of a subsisting licence, from a number of people and in a number of circumstances; for example, from a person proposing to take over an existing licence where the holder has died, or in circumstances where, before the expiry of the licence, its holder has become bankrupt. There we could have somebody looking after the interests of someone who has died, and it refers to a pecuniary or shareholding interest, or it could be in respect of people to whom he owes money, or to whom he has granted a trust deed for behoof of his creditors … has become insolvent; so that, in that case, you might have a trustee, judicial factor or curator bonis ". It goes on to refer to, where the licence was held by a company … and … a receiver or manager, if he has been appointed before the expiry of the licence ". The Bill at present does not say much about those matters. However, lest anyone thinks I have been working over-hard on this, let me disabuse them. These new paragraphs all appear in the proposals for a code of civic government in Scotland, which produced a draft Bill. They were all there; the Government put them out to people to consider in July 1980. All I had to do was copy them out and I am now asking the Government why they have not met what is an obvious need for a procedure for the transfer of licences. The matter was raised in the report of the working party, on page 12 of which they talk about the need for a procedure for transferring licences: Consideration has also been given to the situation where a licence holder dies, retires or is made bankrupt and one possibility is that provision should be made for the licence to continue in favour of any person that the authority think fit until the holding of the next licensing committee meeting. However, in the case of the licence holder's death, provision may be made for the licence automatically to transfer to his executor ". There can be very difficult cases, and there is an even more complicated case when it comes to the question of the taxi-driver, because what he owns as part of his estate is his taxi; the taxi is licensed, and probably my noble friend Lord Underhill will expand on that aspect on later amendments which deal with that point.

Because the Government appear to have missed these matters, I suggest it is necessary to insert them in the Bill so as to deal in reasonable detail with the whole question of licences being transferred. The first part of the amendment deals completely with the power of the licensing authority, and then we come to the other items which supplement that. I commend the amendment to the Committee. The Government will be familiar with the provisions proposed, since they themselves put them into the White Paper just over a year ago. I beg to move.

The Earl of Selkirk

I am not certain of the effect of these provisions. We are of course referring to Clause 15 in the consultation document. That, so far as I can see, has been omitted from the Bill. What is the difference between getting a new licence and transferring one unless there is a pecuinary advantage in selling the licence? Is it the intention that licences should in some sense be marketable? I have not understood that from the tenor of the Bill, but that may be the case. It is clear that there is a question of giving consent by the original holder. If consent is given, and if consent is required, presumably that provides some advantage; and if there is an advantage then it is probable that somebody will pay for it. I did not know that these licences were intended to be on the market. Perhaps they are. I would be obliged if the Minister would tell me.

Lord Underhill

I support my noble friend Lord Ross, particularly as he said the amendment covered taxis.

The Earl of Mansfield

I hesitate to interrupt the noble Lord, and I do so simply to mention that there are later amendments, to which he has put his name, specifically dealing with taxi-cabs, and I suggest we wait until we reach those before discussing the subject.

Lord Underhill

That is precisely what I was about to say; I was about to assure the noble Earl that it was not my intention now to deal with taxis. However, I thought that as he might say I was being quiet on this amendment, I should rise to explain that it was not my intention to rehearse my arguments on taxis now. If this amendment were carried, it would of course include taxis and all the activities for which licences are given. I hope it will be carried. Not only, as my noble friend said, was it in the consultation document, but it is, after all, permissive. A licensing authority could decide whether or not to do it, and I should have thought it represented a principle with which the Committee could agree.

The Earl of Mansfield

The noble Lord, Lord Ross, was of course right to say that these provisions relating to the transfer of licences were included in the consultation document and were based on similar arrangements in the Licensing (Scotland) Act 1976. The reason why the clauses were dropped and do not appear in the Bill was because of the views of the local authorities. Those were that the transfer system as proposed was unnecessarily complex and they (the local authorities) doubted the need for such arrangements if the licensing system as a whole was made more flexible, so that it could be possible under the general system to apply speedily for a new licence without having to wait for the fixed, statutory meetings. That is one of the reasons why I resisted the amendments of the noble Lord, Lord Ross, which tried to make the machinery of application for licences cumbersome and attached to quarterly meetings.

The next point is that although the clauses were discretionary on the authorities in that they did not oblige them to transfer the licence, they did not provide any guarantees for the applicants that a transfer would be permissible. The clauses seemed not to give the licence-holder any guarantee of being able to transfer the licences, nor were they regarded as helpful by the licensing authorities, and so we decided to drop them. Under the procedures laid down in the present Bill the licensing authority would be free to consider a new application for a licence at any time, instead of waiting for the fixed meetings formerly proposed, and it seems to us that there is therefore sufficient adaptability in the new arrangements to cover ordinary cases of transfer.

The point on which my noble friend Lord Selkirk so unerringly put his finger relates to the marketability of licences, and we shall probably all have much more to say about that when we debate taxis. But at this stage I should like to add that the point of a licensing system and the power of a licensing authority to refuse licences solely on the grounds of supply and demand is not within the contemplation of the Government. A licensing authority might have many reasons and good reasons for refusing a licence, but that should not be one of them.

Of course there are cases of difficulty regarding the transfer of a licence. Such a case might occur upon the sudden death of a licence-holder. But under the provisions of the Bill there is an abbreviated procedure for the granting of a temporary licence—that is in paragraph 8 of the schedule, which we debated not long ago—and that procedure could be put in train immediately, so that the executor, the widow, or whoever was involved could have a breathing space in which to consider a revised licence application, as well as, where necessary, someone suitable and qualified to take over a business.

Since under Clause 3—and I commend the clause to the Committee—a licensing authority is empowered to delegate its powers to committees, and even to officials, it should be possible to make very flexible arrangements to cover cases of real hardship, and I understand that this already happens under the existing licensing system.

So with regard to the amendment, not only the Government, but also the local authorities, consider that the noble Lord's proposals are unsatisfactory and cumbersome, and we therefore greatly prefer the much quicker, more streamlined, and less cumbersome framework within which licensing will be carried out under the Bill, and for that reason I am not prepared to accept the amendment. If any Member of your Lordships' Committee were to conclude that, notwithstanding the arrangements for the granting of a temporary licence (to which I have already referred) as well as the arrangements that can be made by a licensing authority under Clause 3, we should provide a speedy procedure for cases involving sudden death, for instance, then I should of course undertake to look at that. But, so far as the generality of the amendment is concerned, I am quite sure that what the Government have set out is the proper path.

5.25 p.m.

Lord Ross of Marnock

I realise that the Government's decision has been reached after they had full consultation on the basis of the suggested provisions that I have copied in my amendment, but with all due respect, I do not think that either the suggestion in the draft Bill, or the suggestion that the Government now make, is necessarily adequate, and I think that the Minister himself appreciates that. Let us appreciate that we have not yet discussed a single licence; we have not discussed a single activity involving a licence. Mention has been made of taxis. The Minister himself mentioned a point about boats, though of course in that case the licence would refer to the actual boat, and I do not suppose that that situation would be affected by anybody's death. But there are other aspects of licensing which so obviously apply to a business.

At some point we need to provide for the automatic transfer of a licence in respect of a business to a named person or agent, because a business has to continue. A person connected with a business might die, but next day the business still has to open, or at least it should be able to open. I do not think that the Government, with this great, new, elaborate structure for licensing and all the rest of it, meet the case by saying, " Oh, yes, a temporary licence ". To obtain even a temporary licence requires a meeting of a sub-committee and getting hold of an individual. The Minister need not shake his head, because the situation is quite satisfactory at the moment, without all the elaborate system that is proposed. It is done now, but he is putting something new in its place.

If he is putting in its place something new, with all these elaborate instructions, conditions and everything else, we should put in the Bill a provision to cover this particular point. The working party felt that; and that was a working party of local authority people and the Minister's officials, set up, I think, by the noble Lord, Lord Campbell of Croy. That working party continued working all the time that I was Secretary of State. It worked for years—nearly 10 years—and it came to the conclusion that something should be done to cover circumstances where somebody died and where it was desirable to have an automatic transfer.

It is not good enough merely to wipe out the view of the working party and the proposals that were reached by the interdepartmental committee, which were enshrined in the draft Bill that was produced last year, and which I have copied into the amendment. I am prepared to accept that that procedure is too cumbersome. I am even prepared to accept that it does not meet the point that I am now making, but there is nothing in the Bill that meets that particular point, and I believe that there will be difficulties about transfer if we rely purely and simply on going back to the beginning and applying for a new licence. It will he very difficult indeed—

The Earl of Mansfield

Will the noble Lord answer a question?

Lord Ross of Marnock

No, I am not answering questions; I am asking them at the moment. If the Minister is to rely purely and simply on a sub-committee, or on the fact that there are powers to delegate even to an official, I think we should make it much clearer that there should be automatic transfer in particular circumstances. That is all I am asking for, and I am prepared to accept that the amendment does not meet the particular case. I believe that the Minister will cause confusion, whether it be for a liquidator, a curator bonis, a judicial factor, or anyone else, if they suddenly discover that in order to carry out their job they have to apply for a licence. I hope that the Minister appreciates the complexity of what we arc dealing with, as well as the difficulties that will arise for many people; and at the moment we do not know who those people will be, because, as I have said, we have not yet discussed a single activity that has to be licensed.

I also hope that he will have another look at the possibility of doing what the working party suggested, which was that there should be some provision for the automatic transfer of licence, it may well be to an agent, an executor, a next-of-kin or someone of that nature.

The Earl of Mansfield

I do not know whether the noble Lord is going to withdraw his amendment, but I assume he has read it through. Where is the automatic transfer? What the noble Lord accuses the Government of doing is of replacing something easy with a cumbersome framework. What I am trying to say to the noble Lord is that it is the noble Lord's cumbersome framework which he provides in his amendment which the local authorities did not want put into the Bill. At the very start of his amend- ment it says: A licensing authority may, on an application made to them …". In other words, before the transfer takes place there must be an application to the licensing authority, which is precisely what the noble Lord is now complaining about.

What I have tried to tell the noble Lord is that if he would only accept the Bill as it stands then, first of all, the representative or the widow can go to the licensing authority and obtain a temporary licence (that is the first thing) or, secondly, under Clause 3 of this Bill, in such speedy applications the licensing authority can delegate to an official the job of issuing the temporary licence. In other words, the licensing authority, if it thinks fit, can provide a very speedy system of a temporary licence, even without the committee having to meet. That is far better than the cumbersome and extremely slow alternative which the noble Lord proposes in his amendment. It is not the Government who are imposing on the licensing authorities a cumbersome framework, a cumbersome procedure, which they do not want; it is the noble Lord who seeks to do it in this amendment.

Lord Ross of Marnock

Without this amendment we would not even have discussed the whole question of the difficulty that arises when a licence-holder dies, goes bankrupt or anything else; and your Lordships would not have been aware that there was such a problem. An amendment had to be proposed. What better amendment should be proposed than the words which were in the Government's own draft proposals? They dropped the proposals, and I have given them an opportunity to justify that and to state the reasons for dropping them. I accept their reasons for dropping them, but I draw their attention to the fact that that still leaves a gap, and that gap is something that was referred to in the report of the Government's own working party, set up in 1972, which worked over all these years and came to the conclusion, set out on page 12 of their report, that there should be provision for automatic transfers.

I understand the Government appreciate that now; and they take refuge in Clause 3, which says that a local authority " may ". " May " means they may not; and the person whose livelihood may be at stake is left in the situation that they do not know whether or not it is covered. Whether or not the noble Earl likes it, penalties have been laid down in respect of anyone who engages in these activities without a licence. Suppose they are without a licence for one, two or three days. They are liable to penalties. I will not read them out but I think the penalty is usually somewhere about £200 and whatever else may be applicable.

The purpose of my putting this amendment down was to fill the gap that the Government created by leaving these paragraphs out of the Bill, having put them into the draft Bill, and I trust that between now and the next stage the suggestion that the gap of automatic transfer should be satisfactorily filled will be accepted. On that understanding—and the Minister of State, in his first remarks in reply to an amendment, drew attention to this—I am quite happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock had given notice of his intention to move Amendment No. 42: Page 91, line 18, at beginning insert (" where appropriate ").

The noble Lord said: Once again, this is the kind of amendment that we have discussed before, where the Government have already committed themselves to examining it to see whether or not these words are appropriate and, if not, to finding other words in particular cases. I do not intend to move the amendment.

Lord Ross of Marnock moved Amendment No. 43: Page 93, line 35, after second (" licence ") insert (" or to transfer a licence ").

The noble Lord said: 1 do not know whether we dare mention the question of the transfer of licences after this, but I am dying to hear what the Minister of State says in this respect. I hope he is not going to tell us that no licence can be transferred, with the result that the amendment is quite unnecessary and in fact does not make sense. However, I beg to move.

The Earl of Mansfield

I think we had the argument on the transfer of licences in general on Amendment No. 41, and I do not think that I can say very much more except to repeat that there is nothing in the noble Lord's amendments—that is to say, Amendment No. 41 and this one which follows it—which is in any way speedier or cheaper than what is proposed in the Bill. I have in fact undertaken, in the case of death in office or death in harness, so to speak, to see whether in fact what we have proposed fully meets all contingencies. But apart from that, I do not think I can help the Committee any further on this amendment.

Lord Ross of Marnock

This amendment merely says " or to transfer a licence ". As I understand the logic of what the Minister said on the last amendment, no licences will be transferred and therefore this amendment does not make sense. That is what he really means. That being so, I propose to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 44: Page 94, line 4, after (" places ") insert (" and on payment of such a fee ").

The noble Lord said: Here we come to paragraph 15(3), which provides: The register shall be open to the inspection of any member of the public at such reasonable times and places as may be determined … ".

I think there is a certain amount of work involved for the staff, and I suggest that there could possibly be a fee in respect of this, bearing in mind that any member of the public may make a copy thereof or an extract therefrom ".

My amendment does not say what the fee will be but merely provides on payment of such a fee as may be determined by the licensing authority … ".

I beg to move.

The Earl of Mansfield

This was a recommendation, or at any rate a provision, which was in the Consultative White Paper draft of the Bill. We considered the point carefully, and concluded that since licence applica- tions relate to activities which may affect the amenity, welfare and livelihood of other members of the community, access to inspect the register of applications—and I underline, as it were, the word " inspect "—should be free and unrestricted. But, of course, as the Committee will see from the next subsection, licensing authorities will still be able to charge for the provision of a certified copy of any item in the register. I therefore hope that, on reflection, the noble Lord might agree that this minor change is in fact a move in the right direction, and will withdraw his amendment.

Lord Ross of Marnock

I keep thinking of the people who Want to see these registers and to check on whether somebody has a licence—somebody who is a window cleaner, or whatever; it could be anything. We have not yet discussed who will have a licence. I should have thought that the Government would look on this with favour. It does not mean to say that the local authority will charge a fee but it leaves it open to them to do so. At one minute the Government is anxious that local authorities cover all their expenses in this field—and there will be some expense in someone getting a register, watching over what happens and seeing that the register is properly returned and not defaced. I should have thought that this was a sensible amendment without tying down the local authority to charge people.

I think the main thing is to make the register available and, having done that, then to deal with a fee. Under other legislation a fee can be charged for the same kind of privilege. It may be a nominal fee but the charge is there. I am not going to recite the other pieces of legislation that I have come across over the long time that I have been dealing with Scottish legislation, but I know that the Government have been over-generous in accepting amendments at the start and I do not want to press them too hard. I am quite prepared to accept the position that the Government think they are being generous here, to leave them with that reputation and withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 45: Page 94, line 32, leave out (" reasonably ").

The noble Lord said: Here we come to expenses. Paragraph 16(2) of Schedule 1 says: in determining the … different fees [under the previous paragraph] the licensing authority shall ensure that from time to time the total amount of fees receivable by the local authority is reasonably sufficient to meet the expenses of the authority ". What does " reasonably sufficient " mean? It is either sufficient or it is not sufficient. I suggest that we leave out the word " reasonably " so that the instruction is that fees must be sufficient. That is the aim: sufficiency to meet the expenses. I do not think that " reasonably " means anything at all here and that it would be better left out. I beg to move.

The Earl of Mansfield

I agree with the noble Lord and invite the Committee to do likewise.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Clause 5 [Rights of entry and inspection]:

5.44 p.m.

Lord Ross of Marnock moved Amendment No. 45A: Page 3, line 1, leave out (" for which case provision is made in section 45(2) of this Act ").

The noble Lord said: Now we go back to the beginning of the Bill by suggesting that we leave out, for which provision is made in section 45(2) of this Act ". Here we are talking about window cleaners. From the drafting point of view, " for which provision is made in section 45(2) of this Act ", I think is a bit of nonsense. If you want to say that it does not apply to window cleaners, then say so; and leave it at that. If you are going to mention window cleaners later on then do so; but here is confusion. It adds nothing. It is not very enlightening for anyone reading a Bill to see in Clause 5 that it says you had better look to see what happens about window cleaners in Clause 45.

Incidentally, if anyone wants to know what happens about window cleaners there, I may say that I am proposing to leave out Clause 45 altogether. I do not think that window cleaners require a licence. From that point of view, it might have been better if I erase from this particular clause any reference to window cleaners. But from the point of view of reform of drafting, the phrase " for which case provision is made at Section 45(2) of the Act " is a bit of nonsense. if this is a new convention of drafting to put in something to say that it does not apply to window cleaners but if you are interested in window cleaners then look at Clause 45, I think that it is not good drafting. I beg to move.

The Earl of Mansfield

This amendment seeks to delete a clarifying reference to Clause 45(2) and, as such, I suggest it would do no more than to remove a helpful cross-reference guide which makes it clear that, although Clause 5(2) does not apply to window cleaners, this is not an absolute exemption and the reader is referred to Clause 45(2). As such, the reference is helpful and that is what it is intended to be. If we look at Clause 5(2) we see it provides that: An authorised officer … may require any person who the officer … has reasonable grounds to believe is carrying on an activity which requires to he licensed … to exhibit his licence within a reasonable time of being required to do so ". It means that the licence-holder does not have to have his licence on his person and to produce it on the spot. He may produce it " within a reasonable time " at the police station or at the office of the licensing authority.

As the noble Lord did not go into the merits, or lack of merits, of licensing window cleaners, I shall not stray down that path; but since what Clause 45(2) does in the fact is to provide that a window cleaning licence must be exhibited forthwith on demand, in effect requiring that a window cleaner needs his licence on him when pursuing his trade—and, I may say it provides in Clause 45(3) an offence provision for failing to produce a licence when requested—then I think it is helpful that there should be the cross-reference which the noble Lord now proposes to delete. I do not think the cross-reference can be amended to become any neater. It is either a question of having it or not having it at all. I should have thought that in a long Bill like this it would be helpful to people reading the Bill—or the Act, if it should become an Act—to know that Clause 5(2) does not apply to window cleaners.

Lord Ross of Marnock

It could also tell them that nothing may apply to window cleaners unless the local authority passes a resolution under yet another clause. So far as I recall, the licensing of window cleaners is one of the optional things; so that we would need a dozen cross-references to deal with this. Once again, here we are talking about licensing and powers in relation to carrying licences when we do not know what is to be licensed. That is the weakness of the Bill from the point of view of anyone reading it to find out what it all means.

I will not say what I have said before about this. What do we want to know? We want to know that whatever else it applies to, it shall not apply to window cleaners. We do not need the cross-reference. It confuses; it skips over a few other clauses and you miss the one which says that there might not be any licensing of window cleaners unless there has been a resolution of the district council to make it apply.

There has been a lot of confusion on this Bill. Having waited from 1972 to 1981 it would have been far better if they had waited for yet another six months and tackled the job in a very different way, after looking at the English Local Government Bill which deals with licensing. A much clearer Local Government (Scotland) Bill—as I think it is—could have been produced.

I understand that the Government are adamant on this amendment. I do not know why. I do not think it is worth pressing to a Division; it would upset a great many people if we did. However, we can do something much more important than this. I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Powers of entry and search]:

5.51 p.m.

Lord Ross of Marnock moved Amendment No. 45B: Page 3, line 33, after (" person ") insert (" in authority ").

The noble Lord said: The Bill says: A constable who is not in uniform shall produce his identification if required to do so by any person in or upon any premises ". Does that mean anybody? A policeman can be challenged by any person? I think that it should read: any person in authority ". That would be a person with the right to challenge him. We have met the phrase " any person " in a previous argument and that phrase is wrong. If the Government can think of better words for limiting the challenge to a plain clothes policeman on a job then I am prepared to examine it. The Bill would be weak if we left the challenge there to any person at all. I beg to move.

Lord Mackie of Benshie

Surely any person who is challenged by someone in plain clothes is entitled to ask that person to produce his authority to challenge.

The Earl of Mansfield

I respectfully agree with the noble Lord, Lord Mackie of Benshie, although he somewhat shortened the argument. It is right to explain why we thought it correct to impose on plain clothes constables a duty to show their identification to any person on the premises or on a vehicle or vessel which they wished to enter and search in pursuance of a warrant granted under Clause 6.

I refer the Committee to Clause 7(6)(d) where—rightly in our opinion—it makes it an offence for any person to obstruct a constable, whether or not in uniform, who is executing a warrant under Clause 6. We believe that it is wrong that a person should be open to a charge of obstruction if he does not have the right to see a plain clothes officer's identification. Therefore Clause 6(3) imposes on an officer in plain clothes the duty to produce his identification to any person who requests to see it.

An example will make it clear to the Committee and also to the noble Lord, Lord Ross. Suppose one has a case where an officer in plain clothes goes to search a large scrap metal yard and he shows his identification to the owner or manager and then proceeds on his search unaccompanied. In such circumstances, he would appear on the face of it to be an intruder to anyone else in the yard who saw him. If an employee then challenged him and the officer refused to produce his identification, the employee could, if he decided that the officer was an intruder, act accordingly and then find himself facing a charge of obstruction even though he had acted in good faith. It is to avoid the possibility of a person who has acted in good faith facing a charge of obstruction that we imposed this duty on officers in plain clothes to produce their identification to anyone who requests to see it.

Another example is if somebody's house overlooks a scrap metal yard and somebody in the house, unconnected with the scrap metal yard, sees a person in plain clothes, whose identity is not known to them, lurking about. As a good neighbour, they go and challenge him. That is an example of where, in the circumstances, the onus should be on the officer in plain clothes to establish his identity and bona fides.

There is, lastly, the practical difficulty about the amendment: the phrase " in authority " is vague. If a plain clothes officer was challenged by somebody, there would then be some cross-talk between whether the person challenging him was a person in authority or whether the officer was going to produce his identification. It would probably take longer to sort that one out than merely to produce the warrant card or whatever. For all these reasons, I would prefer the clause to stay as it is.

Lord Ross of Marnock

I am not entirely happy about that. I said that I was not entirely happy about the phrase that I used: person in authority ". It may well be: person who has himself a right to be there ". This is usually what happens. But there may be occasions in which a plain clothes constable does not want to meet this business of being challenged by anybody; he wants to remain a plain clothes officer. The way it is phrased I do not think is entirely helpful to him. The noble Earl instanced the question of the scrap yard. The officer speaks to the owner of the yard and the owner allows him to go in. I am perfectly sure that the owner would go with him. If not, the owner would, in a loud voice, tell somebody else that the officer was coming.

The other suggestion is that somebody overlooking a scrap yard could see it and they would go down and challenge. If they had any sense, what they would do would be to ring up the police, as the police invite them to do. The police themselves would know exactly what was happening in that particular place. It may well be that the person could be rushing into something and finish up with something that he could not envisage. I do not think it is happy as it is. One might as well have left out " any person " altogether and just say: a constable who is not in uniform shall produce his identification if required to do so ". It must be a person who is going to challenge him—or is it a dog? If the noble Earl does not like my phrase or any other, he might as well take out " any person " and so have the advantage of shortening the Bill. I shall consider the matter again and see whether I can come up with a happier phrase, one that might meet the mood of the Minister of State and those concerned with the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (The Earl of Listowel)

Before I call the next amendment, may I point out to the Committee that there has been a mistake in the wording in line 36 which was put right in the first of the corrections to the text of the Bill. The noble Lord's amendment should therefore read: Page 3, line 36, leave out (' he shall not be entitled to enter or search ') and insert (' and warrant shall thereafter enter ') ". I now call Amendment No. 45C.

Lord Ross of Marnock had given notice of his intention to move Amendment No. 45C, printed as follows: Page 3, line 36, at end insert (" identification and warrant shall thereafter enter the ").

The noble Lord said: I make a habit of reading Bills before I put down amendments. I read this particular clause for at least a quarter of an hour before I realised that somebody had made a mistake. It is not at the end of the line; those concerned just missed out a line altogether. But the confusion of Bills these days is great, and the drafting of Bills these days is so obscure. Sometimes I fancy that the purpose really was to obscure the meaning, just to make sure that everything was absolutely perfect from the point of view of the constable, in this case, or it may be somebody else. When I read this clause it said: … he has been so required to produce his premises, vehicle or vessel … ". Then I went back and wondered whether I was seeing things—and eventually came to the conclusion that a line had been missed out. I tried to envisage what words would make sense. It may well be that the Bill, if not corrected, would have made better sense and certainly there would have been fewer words than is the case by putting in the line of the correction. I do not know who created this haste and hurry which did not enable the Scottish Office or anybody else to read the Bill at the proper stage and notice that a whole line had been missed out; but I hope the Minister will appreciate that it causes Members quite a bit of difficulty when we cannot rely on the words that are there and seek to amend the wording to make sense, and then later on they come along and say, " It is all right; we have missed out a line, but we have issued a correction note ". I can assure your Lordships that that correction note came to me long after I had put down my amendment. I was trying to make sense. It made sense in the uncorrected version. If we have the correct version, then I do not think my amendment does make sense.

[Amendment No. 45C not moved.]

Lord Ross of Marnock moved Amendment No. 45D: Page 3, line 38, leave out from (" vessel ") to end of line 39.

The noble Lord said: With regard to this amendment, I did not think that the words I suggested we leave out added anything at all to the subsection, and it was my suggestion that we should leave them out.

The Earl of Mansfield

May I say that, unless there is some sort of qualification at the end of the sub-section, it then becomes meaningless.

Lord Ross of Marnock

I apologise. This made sense with my amendment, but not with the correction. I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 6 agreed to.

Clause 3 [Offences, etc]:

Lord Ross of Marnock moved Amendment No. 45E: Page 4, line 29, leave out (" £50 ") and insert (" £25 ").

The noble Lord said: This refers to penalties, and it is suggested here under paragraph (c)— … fails without reasonable excuse to deliver his licence to the licensing authority in accordance with paragraph … "— that the penalty should be not exceeding £50. In particular cases—because once again we are dealing with a great variety of licences—it might well be that the window cleaner's lapse in providing the licence is not quite so bad as that of somebody else, and I would have thought, from that point of view, £50 would have been enough there.

If we go to the next page, subsection (5) (2)— " within a reasonable time "—it refers to failure to exhibit a licence. The penalty there is only £25, so I think it would be as well in this particular one that we should allow a certain amount of latitude and though I admit it is not exceeding £50 I think that on the whole £50 is too much. I beg to move.

The Earl of Mansfield

I see the force of what the noble Lord, Lord Ross, has said regarding the penalty for this offence and I am content to accept his amendment.

On Question, Amendment agreed to.

6.6 p.m.

Lord Ross of Marnock moved Amendment No. 45F: Page 5, line 35, leave out (" within 6 days after the date of the conviction,").

The noble Lord said: This paragraph suggests that where a holder of a licence is convicted an extract of the conviction shall be transmitted by the clerk of the court to the licensing authority, who will duly take note of it, I suppose, and hold it against him when it comes to a question of taking away his licence or, it may well he, of adding further conditions to it.

All this has to be done within six days after the date of conviction. The man has a right to appeal and that appeal might be upheld. Is it right, then, that before he even has the opportunity for appeal (because the time limit may be 14 days) that action should be taken which would be prejudical to the continued holding of a licence? I think there is something wrong here. It may be that the words of my amendment do not entirely cover what I have in mind in this amendment when referring to the period after the date of conviction—just to leave these words out. The point of it was to ensure that the Government would take note of the unfairness of this and put in other words; because after all the conviction may well be quashed and, if so, there is nothing to say in the Bill that in those circumstances another notice goes to the licensing authority. The only thing they would have is this notice of conviction I beg to move.

The Earl of Mansfield

There are difficult questions here as between equity and the protection of the public. The present sub-paragraph followed the model of section 129 of the Licensing (Scotland) Act 1976. So far as I am aware, the section has not given rise to any difficulty either for licenceholders or licensing authorities. Although the clerk sends an extract of the conviction to the licensing authority the licence-holder's right of appeal against conviction is of course unaffected, and if an appeal is lodged under Section 442 of the Criminal Procedures (Scotland) Act 1975 the clerk automatically arranges to notify the licensing authority of the outcome of the appeal. This is done administratively.

The noble Lord did not actually say so but I think he came close to arguing that no detail of the conviction should be passed to the licensing authority until an appeal, if there is one, has been disposed of. Again, I am not sure whether that is always in the public interest. For instance, if a licence-holder had been convicted of an offence against the person or against property which could have a serious bearing on whether he was a fit and proper person to hold a licence, the fact that a conviction has been secured is at least arguably in those circumstances prima facie justification for at least bringing the circumstances of the case to the attention of the authorities so that they should consider whether it is desirable in the public interest to suspend a licence—which they can do under the terms of the schedule—at least until the appeal is determined. I would remind the Committee, of course, that there is ground for appeal against the suspension.

As I have said, these existing procedures have operated administratively since 1976 quite smoothly. There is no evidence that a record of conviction is not followed up later with an outcome of the determination of any appeal and I do not at the moment see that we have evidence which would justify changing the existing procedures. But having said that—and this is the Committee stage—if any noble Lord is strongly of the opinion that reasons exist why there should not be notification in these circumstances, then of course the Government are prepared to listen to them.

Lord Ross of Marnock

The Minister said that, arguably, it was right to do this and he then gave us a hypothetical case about the detriment of the public. We are dealing here not with licensing, in the usually accepted Scottish sense, of public houses and the like, but with people's livelihoods in a wide variety of other areas. It is not fair, when a person has a right of appeal against a conviction, that it should be taken for granted that he will be convicted finally and that the licensing authority should be told about it.

I thought that there might be sense in waiting that extra week. The court would then be able to know whether or not there was an appeal and the word could be sent " Convicted, but appeal pending ". That would also alert the licensing authority to the fact that, possibly, it should be interested from the point of view of whether an appeal was to be upheld or dismissed.

I do not think it is fair or right to do this and to do it so quickly. We have the words, within 6 days after the date of the conviction ". and the man has another seven days to decide whether or not he is going to appeal. Why not make it 14 days, so that we can also say whether or not there is to be an appeal? However, the Minister does not seem to be entirely happy that this is fair or right.

He said that nothing much has happened under the Licensing (Scotland) Act 1976. May I tell him that I introduced that Act, but I was not responsible for it because I ceased to be Secretary of State the day after. I do not think there was any cause and effect thereon. But I can remember arguing against certain sections of that Act, because the Government accepted amendments—and Tory amendments, at that—during the Committee stage relating to Sunday drinking and matters like that, on which I continue to frown. But, bearing in mind what the Government have said in respect to this amendment, and their feelings about it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7, as amended, agreed to.

Clause 8 agreed to.

Clause 9 [Application of Sections 10 to 29, 40 to 42, and 44 to 46.]:

6.14 p.m.

Lord Ross of Marnock moved Amendment No. 45G: Page 6, line 28, leave out from (" resolution ") to (" any ") in line 30.

The noble Lord said: This is a very simple amendment. We come now to the licensing of particular activities in respect of which the licensing authority has to pass a resolution stating that such-and-such will be subject to licences. Then we have the phrase as from a day specified in the resolution ". and that day must not be before the expiration of the period of nine months beginning with the day on which the resolution was made ". All I want to know is: why nine months? We have been told that the procedure will be very simple and quick, and, if it is necessary for some of these activities to be licensed, why must we wait for nine months? Will it take nine months to create a new sub-committee? We have been told that these matters function very efficiently at the present time, so why the words, must not be before the expiration of the period of nine months"? I beg to move.

The Earl of Mansfield

I think the noble Lord may be slightly confused over his period of nine months. The nine months runs from the day upon which the resolution is passed and not from the day upon which the licensing authority sets about its task. There is no question of sub-committees or anything else. What one has to do is to strike a fair balance between the rights of the local authority to exercise effective control, and the rights of those engaged in a trade to be given every opportunity to safeguard their legitimate livelihood. Therefore, we feel that where an activity is to be licensed which has not previously been subject to that form of control, the trade in question should have very full warning of the fact so that people have ample opportunity to make any alterations to their vehicles, premises or equipment which may be necessary to meet the new requirements.

Nine months may not be necessary to enable window-cleaners to prepare for the advent of licensing. But, on the other hand, if I may turn to the noble Lord, Lord Underhill, and his taxis again, it might very well be necessary for the owners or operators of taxis to have a considerable period between the passing of the resolution, so far as the licensing authority is concerned, and the coming into force of these regulations which might specify a totally different form of vehicle to be employed as a taxi. That is the reason for the delay between the making of the resolution and the coming into force of the licensing provision, in respect of a particular activity. I hope the noble Lord will agree that it is a reasonable period of time.

Lord Ross of Marnock

The Minister said that he has made me think about it, and I am beginning to wonder whether nine months is long enough, because the Secretary of State has to produce models of conditions and to prescribe lists and all sorts of other codes. We have not dealt with them all and we shall come to them in due course. But if all this must be done before we can start the procedure, bearing in mind how long it took to produce this Bill, I doubt whether nine months is a generous enough time to allow the Government to do their bit of work.

I like the way the Minister said, " Ah, Yes, but what we are thinking of is not the Scottish Office and all the work that it has to do, and not the local authority and all the work that it has to do. What we are thinking of is the taxi owner. " But he has been subject to licensing for quite a time in certain parts of the country, and one thing I do not see changing to any great extent are the conditions about types of taxis. But the noble Earl has convinced me. I hope that he will have another look at it and see whether he is satisfied that the Scottish Office will be able in nine months to do all that it has to do. I see that the noble Earl is going to say, Yes and that the Scottish Office will look at this and speed things up very considerably and will deal with all the regulations and everything else. In fact, it may well be that we have to deal with them as well. But, in view of that, I beg leave to withdraw the amendment.

The Earl of Mansfield

Before the noble Lord withdraws the amendment, I wonder whether I may put him right again. It might be helpful, and not only to the noble Lord, if I explain as briefly as I can just how we envisage these licensing authorities affecting the transition between the existing licensing system, under the Burgh Police Acts or local Acts in respect of a given activity, and the new system in respect of the same activity provided for under the optional provisions in the Bill, which licensing authorities can adopt by resolution under Clause 9. After the Bill receives Royal Assent, it will be necessary first to complete consultation with interested parties on a number of points, particularly on the conditions in respect of hire car and taxi licences which under Clause 19 the Secretary of State has power to prescribe and proscribe by regulation.

Thereafter, we intend to bring into force Part I and Clause 9, probably around Whitsun 1983, enabling licensing authorities to resolve that certain activities should be licensed in their areas. To circumvent the obvious legal problems which would otherwise result from resolving to adopt optional provisions which are themselves not yet in force, we have specifically provided in Clause 131 that anything which must be done under any provision of Parts I and II of the Bill may be done before any such provision comes into force for the purpose of giving full effect to it when it is formally commenced. We have also provided in Clause 9(8) that licensing authorities which have resolved that certain activities under the optional provisions shall he licensed in their areas may, prior to the coming into effect of that resolution, exercise such powers conferred by Part I and the relevant optional provisions as may be required to bring the licensing system into effect in an orderly and equitable fashion.

The effect of Clause 131 and Clause 9(8) together is to enable local authorities to consider applications for licences not only before the day on which the resolution in respect of that activity comes into effect but also before the Secretary of State formally commences the optional provisions as a whole. It is clearly essential that licensing authorities should be able to exercise all their powers in respect of licence applications—for example, powers of inspection, duties of consultation with police and fire authorities—before the day on which the new licensing system comes into effect and it therefore becomes an offence to operate without a licence. In their resolution, licensing authorities will be able to set a date for the coming into force of the new system not less than nine months after the date of the making of the resolution but not of course earlier than the formal commencement of the optional provisions. This interim period will last for at least a year.

Since the Burgh Police (Scotland) Act and local Act provisions in respect of licensing will not fall until the end of 1984, unless the replacement provisions are commenced earlier, the existing regulatory systems will remain in force. Since most licences under the Burgh Police (Scotland) Act are granted from Whitsun to Whitsun it would be convenient if the transition could be effected at Whitsunday 1984, and this is our provisional aim. On that date the optional provisions will be brought into force, and under Clause 132(3) cognate licensing provisions of the existing legislation will automatically fall. Existing regulatory systems will therefore cease to have effect. However, since licensing authorities will have had plenty of time to resolve to adopt optional provisions and to consider applications under them, they should be able to fix the date of repeal of the old system as the date of commencement of the new. There should therefore be no problem in affecting a smooth transition between an existing and a new system of licensing in respect of any activity.

I am afraid that all this is complex and not a little tedious, but I hope that from this the noble Lord will see that in fact the new structure is designed to come into operation smoothly and in sufficient time for everybody who has to learn to live with it to know what they have to do.

Lord Ross of Marnock

What the noble Earl has said is very interesting. I congratulate him on a very fine Third Reading speech. I was too well brought up in another place; I know what is in order and what is out of order I realise that in this place anything is in order. However, I still congratulate the noble Earl. At the same time, I wonder what on earth would have happened to that speech if I had not put down this amendment. It is such an important amendment that I wonder whether we should let it go so quickly. But just in case there is another Third Reading speech up the sleeve of the Minister of State, I had better hurriedly withdraw this amendment.

Amendment, by leave, withdrawn.

6.25 p.m.

Lord Ross of Marnock moved Amendment No. 45H: Page 7, line 22, leave out from (" it ") to end of line 23.

The noble Lord said: I have a simple question to put to the Minister. Before proceeding to make a resolution (here I am inviting trouble again; we are back to the resolution by a district council) a licensing authority may make such modifications to the proposed resolution as they think fit in the light of representations, provided that such modifications do not extend its scope. Why not? That is why I suggest that we should leave out these words. I beg to move.

The Earl of Mansfield

This is part of a safeguard which we have built into the Bill to keep those involved in the trades concerned in touch with the thinking of the licensing authority at each stage. One of the safeguards is this one. It is a provision that licensing authorities may not make a resolution which goes wider than the scope of the proposed resolution previously advertised in draft. We felt that the trades to be licensed should without exception have an opportunity to make representations to the local authority about the terms of the draft resolution covering them and the right to have their representations considered. If licensing authorities could widen the scope of a draft resolution in finally making it, they could draw within its scope those who previously had been unaffected and who had therefore been given no opportunity to make representations against the licensing proposals. The limitation that is contained here was specifically designed to safeguard against this procedural danger and to ensure that all activities, and all cases of activity, had a chance to make representations against local authority proposals that they should be licensed. I hope the noble Lord thinks that that is a reasonable explanation.

Lord Ross of Marnock

It is not only reasonable but but very sensible. I am most grateful to the Government for having given that very lucid explanation of why this tailpiece phrase is included. In view of his explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 45J: Page 7, line 35, leave out from (" authority ") to end of line 36.

The noble Lord said: Here the licensing authority, having made up their mind, publish their resolution in a newspaper. It is also said that applications for licences in respect of the activity may be submitted to the authority one month after the date of the making of the resolution. We have just been told (it was part of that Third Reading speech) that local authorities are going to have the power to get ready for all these matters. But here it is said that nothing can be done by way of submitting applications for licences until one month after the date of the making of the resolution. Why one month? I thought that they were going to be all ready. I thought this was the implication of what the Minister of State has said and that there need be no delay at all. I beg to move.

The Earl of Mansfield

The delay has been put into the clause with two main considerations in mind. First, it was our intention to give local authorities time to make administrative preparations for the new scheme—for instance, to get forms and instructions printed. Perhaps more importantly, it was intended also to give those involved in the trades concerned time to consider their premises, vehicles and equipment and to obtain any legal advice required to draft their applications, so that when the licensing authorities first came to consider the applications they would have some idea of how many applications there were likely to be in total and how the provision of licensed activities might be distributed across the area. Therefore what this one month's delay is designed to achieve is what I might call orderly application on the part of those who will want licences. I would stress that it is really the licensing authority which will not consider an application before one month, as opposed to a ban on the submission: and it was as much from a desire to be fair to all would-be licence-holders as to its own procedures that this provision was drafted in this way.

Lord Ross of Marnock

With all due respect what the noble Earl the Minister said in his last sentence is not true. He said that there was no ban on sub-missions. It is stated specifically, applications for licences in respect of the activity may be submitted to the authority one month after the date of the making of the resolution". If the Minister turns to subsection (8) he will find that there is a ban on the consideration of licences, until the expiry of one month after the making of the resolution ". There is a very definite ban. One cannot submit an application for a month, and indeed the authority cannot consider an application for one month.

The Earl of Mansfield

In fact, the noble Lord is wrong. There is nothing to stop someone from submitting an application, but it will not be considered for a month.

Lord Ross of Marnock

In that case, at the next stage I am going to move an amendment to leave out Clause 9(6)(ii). If there is no objection to people sending in applications, and it is only that they will not be considered for a month afterwards, why not say so? We already have that in Clause 9(8). If what the noble Lord the Minister says is true, this does not make sense and it is not needed.

On Question, amendment negatived.

Clause 9 agreed to.

Clause 10 agreed to.

Lord Underhill moved Amendment No. 46:

After Clause 10, insert the following new clause:

" Application of Schedule 1 to taxi licences.

.—In relation to an application for the grant of a taxi licence Schedule 1 to this Act shall take effect subject to the following amendments—

(a) the following paragraph shall be inserted after paragraph 2— 2A. In the case of an application for the grant of a taxi licence the licensing authority shall as soon as the application is made to them send a copy of the application to persons or organisations appearing to them to be, or to be representative of, the operators of taxis operating within their area.

(b) the following head shall be inserted after head 3(1)(c)— (d) in relation to an application for a taxi licence, any person or organisation to whom a copy of the application has been sent under paragraph 2A above.".

(c) in paragraph 5(3) there shall be inserted after the word " shall ", where it last appears, the words " subject to sub-paragraph (3A) below.".

(d) the following sub-paragraph shall be inserted after sub-paragraph 5(3)— (3A) In the case of an application for the grant of a taxi licence a licensing authority may refuse the application if in their opinion there is already in force in their area a sufficient number of such licences to provide a satisfactory service to the public consistent with the provision to licence holders of a reasonable livelihood.".

(e) in paragraph 17(4) there shall be inserted after the word ' person " the words " or organisation ".").

The noble Lord said: This proposed new clause covers two points: the limitation on the number of taxi licences that the licensing authority may issue or grant, and the opportunity for representatives of taxi operators to make objections or representations on an application for a new licence. At Second Reading the noble Earl said that the onus was on those who put forward the proposed limitation to justify such a change. Therefore, I want to justify this and do what the noble Earl said, and therefore to cover a number of points.

Paragraph (d) of the proposed new clause is the one which proposes that a licensing authority may refuse an application for a licence if they are of the opinion that there is already a sufficient number of such licences to provide " a satisfactory service ". Those last words are important. As has been said already, during the Second Reading debate it was stressed that the working party had recommended that there should be control of the number of licences. The actual quotation has not been given and so I wish to give it now, to put it on the record. Paragraph 11. 50(b) stated: District and islands councils should have the power to determine the number of taxis allowed to operate. This is necessary on the one hand to provide a service to the public and on the other to ensure that within the licensing area operators can make an adequate living ". It would seem that four years after that recommendation the Government still approve that proposal, because it was included in the draft Bill in the consultation paper. Again, I quote the actual words of the proposed Clause 8, subsection (3)(c): having regard to the facilities of the same or of a similar kind already available in the locality, the grant of an application would result in the over-provision of such facilities ". The preamble to that was that a licensing authority may refuse an application if that is the situation. At the Second Reading the Minister explained that this provision had been dropped because the Government were in general against any limitation of numbers and restriction of trade on quantitative grounds. But I was very encouraged that the noble Earl went on to say: Taxis are unique under the Bill as being the only trade whose charges are not fixed by market forces but are fixed by the licensing authority ". There are some who suggest that a limitation such as that proposed in this clause makes for a monopoly. I would say that that is a complete myth. There can be no monopoly conditions where the charges and thereby the level of revenue and profits are in the hands of the licensing authority and not in the hands of the actual operators.

In fixing a fares tariff a licensing authority must in all fairness take into consideration that there is only a certain amount of custom. As the Minister went on to say in the Second Reading debate: One object is to give an operator a reasonable opportunity to make a living ". A significant increase in the number of taxis despite the degree of custom there is in the area must lead to lower average receipts. At the same time it must lead to increased overheads per mile that are paid. The taxi operator cannot respond to market forces by increasing fares because, as has already been explained, these are the responsibility of the licensing authority. It surely must be recognised that any coherent policy of fare regulation must be accompanied by an intention on the part of the licensing authority to keep the number of taxis within limits which produce viability within the tariffs laid down.

The working party stressed that the case for limitation is not only in the interests of the taxi operators but also in the interests of the general public. That is one point I wish to emphasise. If the revenue is reduced because of the over-provision of licences, this must inevitably lead to a lowering of standards in both the provision and maintenance of vehicles. But if market forces and the policy of self-regulation is to be the rule, those members of the taxi trade who make the business their full-time livelihood must be at risk. This must be particularly so at times of economic stress when others will take up taxi driving on a short-term, temporary basis. The introduction of that kind of taxi-driver invariably leads to lower standards for the public and lower standards of vehicle maintenance and safety. It is the regular taxi operator who would have to bear the hardship.

The amendment is not asking that a local authority should fix a once-and-for-all figure of limitation, nor to be rigid in the way that it does this. That would work against the public interest because there could be a situation where there were too few taxis in an area, and therefore a licensing authority must have an opportunity to vary that situation if it so wishes. It is not the intention of the amendment that there should be a once-and-for-all limitation. Under the proposed new clause, a council would always be free to review the position, and should they consider that there are too few taxis in their area, they could grant additional licences.

Briefly, on the other parts of the new clause, as has been explained, Schedule 1 to the Bill deals with all activities for which licences are to be issued. The new clause proposes an amendment to the schedule which would apply only in the case of taxis, such as the limitation of licences to which I have already referred.

Paragraph 2 of the schedule provides that when an application for the grant or renewal of a licence is received the local authority shall send a copy to the chief constable, and at present to the fire authority; that is a point the noble Earl is going to look into. Head (a) of the amendment provides that in addition a copy of the application shall be sent to pesrsons or organisations representative of taxi operators. The purpose of that is because head (b) proposes that those persons shall be added to the list in the schedule as being entitled to make objections or representations, and I am certain that that will be regarded as reasonable. I think both these points included in the clause are reasonable, and I hope that in this very short time the onus placed upon me to justify these changes has been met. I beg to move.

The Earl of Mansfield

As the noble Lord, Lord Underhill, has said, this new clause would allow the licensing authority to refuse applications for taxi operators' licences if in their opinion there are already sufficient licences to provide a satisfactory service to the public consistent with providing a reasonable livelihood to taxi operators. It would also require the licensing authority to send a copy of all taxi licence applications to representatives of the existing licensing trade, who would have a right to object to any new applications.

The essence of this new clause is in the proposed head (d) which would allow the authority to refuse applications for taxi licences if in their opinion there are already sufficient licences, and so it goes on. That is, of course, that the licensing authority would be able, although not bound, to limit taxi licences on the basis of that criteria. As I am sure the noble Lord, Lord Underhill, would acknowledge, the rest of his amendment really revolves around the new limitation, so I propose to deal with head (d) first. The question of limitation of taxi licences is difficult, and I acknowledge that there can be strongly held and conflicting views. As I said on Second Reading, I know very well that the present licensed Scottish taxi trade feels strongly that the Bill does not contain this power for a licensing authority to refuse an application for a licence on the grounds that, in effect, the granting of the licence would result in an over-supply of the facilities in question.

The reason for our dropping this power of limitation, as I think I made plain in the earlier debate—and this applies to all activities licensed under the Bill, not just taxis—is quite straightforward. We are not in favour of local authorities controlling on quantitative grounds entry to private enterprise activities such as those covered in the Bill. This could well lead to artificial limitation and restriction on trade. And it is significant that in those areas where taxi numbers have been tightly controlled we have seen an expanding hire car market, which apparently meets a real public demand and provides a reasonable livelihood for those engaged in the hire car trade.

The noble Lord went on to argue that the taxi trade is unique because it is the only trade covered by the Bill whose charges are fixed not by market forces but by the local authority. But I would remind the noble Lord that at Clause 17 there is provided a mechanism whereby taxi operators can appeal to the traffic commissioners on fares. The commissioners are free to take into account on fares any matters they consider relevant, including those such as service to the public and return to the trade—matters which this paragraph of the amendment recognises as relevant. There is, therefore, that degree of protection for the taxi trade.

The amendment seeks to achieve limitation having regard to the criteria of service to the public and provision of reasonable livelihood to licence holders. One can immediately see why the trade would welcome the introduction of such criteria. At present a number of local authorities in Scotland who limit the number of taxi licences fix the limit at a number higher than existing licence-holders. But I do see difficulties. To start with, there could be a conflict between satisfactory service to the public and what the existing trade would regard as a reasonable livelihood. The public could be demanding more taxis and the trade saying that more operators would cut into their profits and so reduce their livelihood.

It can, I think, be argued that local authorities are not equipped to deal with quasi-economic issues such as what would or would not be the number of taxis which the public can support in a particular area to ensure both a satisfactory service to the public and a reasonable return to the operator. Both these concepts have very subjective interpretations. In our view, the main role of local authorities in relation to taxis is to confirm that the vehicles and the drivers are suitable and to fix the fare structure, on which the taxi operators have a right to appeal to the traffic commissioners. To empower local authorities to limit numbers would be seen as an unnecessarily protectionist measure which would not operate to the public's advantage because it would reduce competition. So it seems best to us to rely on market forces, bearing in mind that provision has already been made for appeals on fares. The trade in any area would reach its own balance both as to income to be derived from it as a result of the productivity and efficiency of the operators themselves and the fare structure agreed, where necessary with the traffic commissioners.

I am aware of the arguments which the National Federation of Taxicab Associations have advanced, that the absence of limitation of any kind does result in a free for all which leads to confusion and diminution of service to the public. But so far I do not consider that the case has been proved. I am bound to say that, despite the efforts of the noble Lord, Lord Underhill, I have yet to be convinced that any case has been made out for limitation, and I would have hoped in this debate for some guidance, perhaps from other noble Lords, as to whether in fact there is a case for limitation at all. But I will say at once that I am prepared to consult with the Convention of Scottish Local Authorities, if as a result of this debate there is really any demand for limitation, or any convincing arguments put forward for restriction, other than those which the noble Lord has already advanced, and, if I may say so, have already been well rehearsed.

I turn now to the other parts of the noble Lord's amendment. The other parts propose that local authorities be required specifically to inform representatives of the licensed taxi operators of applications for taxi licences who will also have the right to object to any new licence application. These paragraphs also, of course, have to do with limitation, but they are particularly and exceptionally protectionist. The effect would be to give existing taxi operators the privileged position of being notified of any new person applying to pursue that activity, and the right to object to that person's request. This is unacceptably protectionist. I can quite see the desire of anyone pursuing a trade wanting a statutory right to object to somebody else pursuing it. I am sure all enterprises would welcome that. But this idea would mean putting. the trade in a privileged position and, in effect, turning the existing operators into an élite enclosed guild. For those reasons I find it very difficult indeed to accept heads (a) and (b) of the new clause.

I fully accept that existing taxi operators should he able to know what is going on, and this of course applies to any other holders of licences under the Bill. So I would propose at a later stage of the Bill to amend paragraph 15 of Schedule 1, which requires a register of applications to be kept by the licensing authority and open to public inspection, and make clear what is already the intention, that all applications must be entered as soon as they are received. In this way taxi operators and other persons licensed under the Bill can keep abreast of developments by inspecting the public register.

So, by way of summary, I have so far not been convinced of the need or, indeed, the desirability of providing for limitation. As to that I am at the very best an agnostic. But I am willing to be convinced and, in that event, to consult the convention to see whether, in the light of any further arguments that may be put forward, they would wish to adopt the amendment tabled by the noble Lord.

Lord Mackie of Benshie

I tend to agree in this case with the Minister that limitation should not be by the licensing authority. There is at present in the rural districts of Scotland a tremendous expansion of the use of taxis. The need for licensing and the need for control of the vehicles and of the type of driver is, I think, very strong. On the other hand, it is quite extraordinary sometimes how long it takes to improve a vital service and how many mistakes and how much danger to the public there can be if it is a matter of complaint to public authority. I have seen bad vehicles—drivers who have terrified me and everyone else in the area. I am not sure whether they were licensed or not, but I think that there is little doubt that the quickest way that the public can cure this is by the business of selecting another operator, if there is one available. It takes too long for the licensing authority to correct the dangers and abuses which can certainly occur in taxi services in rural areas.

In my view the argument on fares does hold some water in that they are not fixing their own fares and therefore it is not a proper free market. On the other hand, if you have a licensing system and the authorities are seeing that the vehicles are right and that the people are right you will not have the number of cowboys coming into the business that you would have in an unlicensed system. So, in this case, I think the service to the public would be much better if competition were left to determine the number of taxis.

Lord Ross of Marnock

I am sure that my noble friend must be disappointed at the Government's reply. Yet there is some semblance of light that the noble Earl is prepared to talk to the local authorities about it. I hope that he would extend that discussion to the association of owners as well. The noble Earl says that he has not heard any arguments for it. It might well be that he has not heard any convincing arguments for it—that would have been fair enough.

Of course the noble Lord, Lord Mackie, points to the increased importance of taxis in areas where bus services have disappeared. He rightly stresses the importance there of the initial licensing system and that means, of course, the drivers and the vehicles. When he says that there is less danger of cowboys coming into this field, I do not think that he is right. In my view there is probably considerable danger of cowboys coming into this particular field.

I should like to know whether the Minister of State has made any reference to his own department as to the reasons for the working party's findings on this. The working party—set up, I think, in 1972—consisted of very eminent gentlemen who probably looked into this matter very well: Sir Ronald Johnson was chairman and secretary of Commissions for Scotland—a very distinguished Scottish Office civil servant; there was the chief constable of Renfrew and Bute, who is now assistant chief constable of Strathclyde; Mr. Chapman, the town clerk of Kirkcaldy, now the chief executive of Kirkcaldy District Council; Mr. Colquhoun, the town clerk depute of Glasgow; Mr. Evans, the county clerk of Midlothian; Mr. Grant, the town clerk of Dumfries; and Mr. Liddell, former town clerk of Greenock; there was Mr. MacLeod a former procurator fiscal from Edinbugh; there was the town clerk depute from Edinburgh; Mr. Russell, the county clerk of Aberdeen, now the chief executive of Grampion Regional Council, together with representatives of the Scottish Development Department (Local Government Division). All those people—

Lord Mackie of Benshie

I hope that the noble Lord will permit me to interrupt him. He has read out a list of very distinguished gentlemen serving on the committee, but every single one was a bureaucrat of some sort who thinks he knows best. There are not many members of the public represented on the committee.

Lord Ross of Marnock

There were representatives of the Scottish Development Department (Local Government Division), the Scottish Home and Health Department and the Solicitors Office. They met all sorts of people who were not bureaucrats. Even a bureaucrat can hire a taxi. Even a bureaucrat can stand and wait for a bus; even a Secretary of State can! I think that this categorisation of the people in the Scottish Office, eminent, with long service and the rest of it, as completely devoid of any knowledge of the rest of the world and how people live, is quite unworthy of the Liberal Party and even more unworthy of the noble Lord, Lord Mackie of Benshie. I can assure him that I probably have more contact with these people, every single one of them, than he has and I would not dismiss their experience in that particular way.

The point I want to make is that if we look at page 18, paragraph 11.50(b) which deals with taxis, the point is made as regards the distinction between taxis and hired cars that a far stricter code is necessary for taxis than for hired cars. The noble Lord, Lord Mackie, would probably agree with these distinguished bureaucrats in that regard. In fact he said so in his speech. When they came down to the question of control of numbers they had this to say: District and islands councils should have the power to determine the number of taxis allowed to operate "— this is argument— This is necessary on the one hand to provide a service for the public ". I think that the noble Lord, Lord Mackie, would agree with that. He wants a service for the public and so do these bureaucrats—terrible people; they are able to see into his mind and to put into words in one sentence what he took a sentence and a half to say. It goes on: and on the other to ensure that within the licensing area operators can make an adequate living ". Does the noble Lord want these taxi drivers, who are so important in his area of the Highlands, to make an adequate living? Knowing the noble Lord, he will say, yes. Yet he would have wished upon them circumstances that might deprive them and drive them into bankruptcy, because there is an over-provision. We must get the balance right.

Lord Taylor of Gryfe

The noble Lord was asking about the provision to prevent them going into bankruptcy. The point was made that they still have the right of appeal to the traffic commissioners in relation to fares, and presumably the fares structure which would be agreed by the traffic commissioners would protect against the dire consequences which the noble Lord has outlined.

Lord Ross of Marnock

Not at all. There are far, far too many taxis all charging the same. Let us remember that the fares are laid down by the traffic commissoners. There is a point when you do not get sufficient customers for the number of taxis. It is as simple as that. There is no custom because there is an over-provision. That is the point. It has been made by the taxi owners and by the working party—these distinguished bureaucrats, as the noble Lord, Lord Mackie, calls them. It is a good thing that we are in Committee.

7 p.m.

Lord Mackie of Benshie

I want the noble Lord to realise that there are other methods of control. It may be far better for the taxi drivers to give up if there are too many of them, than simply to rely on the local authority providing them with a living. The local authority might, in fact, license far more taxis than are necessary. I am saying that even these distinguished gentlemen, whose minds work exactly like that of the noble Lord, Lord Ross, might not be as good as the general public in determining how many taxis there should be.

Lord Ross of Marnock

That is typical of the Liberal Party: let us have a superfluity; let everyone go bust and do something else, such as work in agriculture for the noble Lord, or something like that. But what about the actual taxis? They are very expensive vehicles. They have to go through all the hoops of being licensed as taxis. The Secretary of State—another bureaucrat will lay down exactly what kind of taxis they will be, how they will be equipped, and all the rest of it. He thinks that after spending all this time we should endanger the economic use of the taxi.

Of course, it is a matter of balance. But who is better able to deal with that than the district council of the new licensing authority, which will receive all the complaints about the provision and will be able to hear both sides and weigh them up, particularly if this provision is put into the Bill when it comes to actual applications for a taxi licence. It is a simple matter of provision and balancing it out. But if you do not include it, you get the position where the Minister suggests, " License everybody, provided that they meet the technical requirements ", and that kind of thing. We have seen this happen so often before. I can remember when buses first started in Ayr, there were about six different services. It was great for the customer, but five of them went bust and some people lost a great deal of money—they lost their livelihood. You do not want that kind of thing with something which, as is said, is an essential service.

I think that my noble friend Lord Underhill is quite right to press this point. It is a very limited sort of competition where everyone can get a licence but you cannot charge what you like, where the fares are laid down, in the first instance, by the licensing authority and then, on appeal, by the traffic commissioners. This is a recognition matter; there is a condition of semi-monopoly. In fact, this was virtually stated by the working party themselves. They went into this matter very fully, and the conclusion they reached was that there should be the power to determine the number of taxis allowed to operate. As far as I can understand, the licensing authorities with which I am more familiar are fairly generous in respect of this. They will never be able to be so restrictive as to please the taxi-owners; of that I am perfectly sure.

However, if you take away this power you imply—and it was implied in the speech (and I thought it was a very dangerous speech) of the Minister of State—that virtually everyone who applies and who meets the technical requirements must get the licence. What was the noble Earl's lovely phrase?— quantitative grounds restricting the activities for competitive business ". I do not think that that applies here. It is a nice slogan; it is a nice principle for the party that the noble Earl represents.

Then he went on to say that there was very considerable resort to the hire market because of the absence of taxis. I think that he had better read the working party report, where he will discover the task or the job of taxis as compared with that of the hire car, for which even they suggested—and the Government found this acceptable—that there should be no restriction on numbers and no control of fares because it is a bargain struck between the person who hires the car and the driver or owner thereof. The whole position of taxis and hire cars is entirely different. It would be quite wrong to link the one with the other in his arguments about it.

Out of fairness to the public and out of fairness to the taxi driver, I think that we should allow the licensing authority, on which he is placing very considerable dependence in other ways, to be the judge in respect of the numbers, and give them the power to control numbers.

Lord Taylor of Gryfe

The noble Lord, Lord Ross of Marnock, is perfectly right; it is a matter of balance. In any legislation we have a duty to provide two things in this regard: first, an adequate service to the public; and, secondly, an adequate return to the man who is engaged in running a taxi business. In relation to the first, a substantial consumer interest is involved. I was wondering whether the Minister, when he has undertaken to consult with the Convention of Scottish Local Authorities on this matter, would also consult the Consumer Council in Scotland. When I get off the train from Edinburgh to Glasgow, I regularly witness a long line of people waiting for taxis in the rain and just now in very inclement weather—men, women and children—because there is not a very good public transport service to that part of town. I see them waiting for a very long time, unprotected from the elements.

There is a substantial consumer interest in providing enough taxis to ensure that the consumer gets a fair deal. So I would hope that the Minister might extend his inquiries in this regard and ensure that the balance is right by consulting the Consumer Council in Scotland as well as COSLA.

The Earl of Selkirk

My inclination is to support my noble friend in, I think, the very sympathetic approach which he made to what is undoubtedly a problem, because this is an integral service in a modern city today. The noble Lord has just given an example of where it might well fall down. I also know that the taxi drivers work very hard—at least many of them do—and they certainly deserve to get a full and reasonable living for so doing. But I should like to ask the noble Lord, Lord Underhill, who raised this, on what basis he would proceed. How would he reach the best result except by a balance? After all, there are part-time taxi drivers.

There is another matter. If the taxi service is bad, people will inevitably make other provision. There are a great many ways in which that can be done nowadays. I should like to see an excellent taxi service, in which case there must be an adequate number of taxis. Who is to decide what that is? I do not think that there is any way of deciding it theoretically, except by taking into account supply and demand.

The noble Lord, Lord Ross, spoke about people being deprived of their livelihood. In fairness, if anyone is deprived of a livelihood, they will give it up; people will not enter the service. There is an inevitable automatic balancing feature which takes place. I do not see how a basis could be reached, in theory, which would give a limitation which would be effective to the consumer and fair to the taxi driver. If the noble Lord, Lord Underhill, can explain in a convincing way how this could be done, I might change my mind, but at the moment I cannot see how it can be done.

The Earl of Mansfield

Before the noble Lord, Lord Underhill, decides what he is going to do—and, in view of my undertaking, I assume that he will withdraw his amendment, at least at this stage—I wonder whether I can put to him just what it is he has to do to convince the Government that his case is just. The Government have consulted the federation on a great number of occasions at official level. But the drawback to their arguments has been—as, in fact, my noble friend Lord Selkirk hinted—that they have produced a number of assertions of what they want to see, and not arguments based on fact. For instance, no hard evidence has been produced based on facts and figures that in areas, for instance, where the number of taxis is limited there has in any way been a more satisfactory scheme of things than in other areas where the number is not limited. Conversely, there have been no facts or figures produced that the kind of undesirable consequences which the noble Lord said would happen—for instance, part-timers and cowboys—have arisen, at any rate in an unsatisfactory manner.

Of course, the Bill provides for what I might call the quality of taxi driver in Clause 13, so that one must keep a distinction in this case between limitation of the number of taxis and the quality of those who drive them. That is something that the noble Lord has to get over. The other matter I wanted to mention is that I am extremely attracted by the request, if that is the word, of the noble Lord, Lord Taylor of Gryfe, that we should consult the Consumers Council, and I am delighted to give the undertaking that we shall do so.

Lord Underhill

May I just deal with a few points raised by the Minister. It was not I who said that the taxi trade was unique. It is unique under this Bill, but it was the Minister himself at the Second Reading who said that he recognised that because of, decisions by local authorities taxis could be said to be unique in being the only trade covered by the Bill whose charges are fixed not by market forces but by decisions of officials and, as it were, promulgated by local authorities ".—(Official Report, 24/11/81, col. 699.) That is one of the big points for suggesting that there should be some limitation.

In case there is any dubiety about it, I must make it clear that I am not here as a consultant of the taxi trade. I have consulted the taxi trade, but have made it clear to them that I will only support amendments which I can justify for my own support for their case, and that is why I am putting forward this case now. The noble Lord, Lord Mackie of Benshie, said that if somebody cannot make a living, let them give up. That is rather a curious attitude for anybody to adopt. Surely we want to avoid that situation. We do not want to find a trade only of cowboys, so that legitimate people who want to make a regular, full-time living out of it all have to give up; but that is what would happen if one accepted Lord Mackie of Benshie's argument.

The Minister suggested that local authorities are not equipped to make this decision. I cannot believe that. I know very little about local authorities in Scotland, but I have had a fair amount of experience of local authorities in England and I cannot believe that an authority is not in a position to make this sort of decision. The noble Earl, Lord Selkirk, asked o[...] what basis would it be done. Well, one would get the general consensus of demand by looking at the sort of point that the noble Lord, Lord Taylor of Gryfe, mentioned, to see whether there is a shortage of taxis at these points, or a superabundance. They would consult the police, or even the taxi trade. I am certain that the authority could make a decision upon this. I am as much interested in the interests of the public in this matter as I am in the interests of the taxi operators.

The Minister said that the question of market forces is somewhat limited in its effect because of the provision for appeal to traffic commissioners on the question of fares. I must ask, what is the Minister really suggesting? That if there are too many taxis and the operators cannot make a living, they then go to ask for higher fares? Surely that is not going to be an economic way out of the situation. It is a nonsensical way out of the situation. Therefore, I cannot see that that is the sole argument.

Under the terms of the amendment there would be flexibility on the part of the local authorities. They would not be compelled to fix any particular figure. They could vary it from time to time according to the situation. They could decide to grant additional licences if they consider that there is a necessity for so doing. Therefore, there is complete flexibility.

On the other two points, if we are not going to have limitation then surely there is a greater justification for the other points in the new clause that the representatives of the taxi operators should have the right to make objections or representations against new licences. This would be the only place where they would have the opportunity, if this is agreed, to say that there are far too many licences being given. I hope the Minister may look at that.

While I am grateful for his suggestion that he would be prepared to deal with greater publicity for registers, I hope he may say that he would also look at this question of representation, because if at the end of the day the Government are going to come down against limitation of the number of taxi licences, then surely that would justify up to the hilt the right of the taxi operators who have existing licences to make objections or representations if additional licences are going to be given.

I am grateful for his offer that he will arrange consultations with COSLA. I know there have been consultations with the taxi trade, but I hope it may be widened again, and in the light of the debate in this House that the Minister may have further discussions with the taxi trade. I am quite happy for some measure of the consumers being brought into this matter, because I believe this would be in the interests not only of the viability of those operating the taxis but also of the general public. In the light of what the Minister has said, I should like to study the debate carefully and see what may be done at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.17 p.m.

Lord Underhill moved Amendment No. 47: After Clause 10, insert the following new clause:

(" Transfer of licences

.—(1) This section and section (Transfer of licences: supplementary provisions) below shall apply in relation to an application for the transfer of a taxi licence.

(2) A licensing authority may, on an application made to them in that behalf by a proposed transferee of a subsisting licence and in accordance with this section, transfer the licence—

1. (a) to a person proposing to take over the taxi to which the licence relates;
2. (b) where the holder of the licence has died before its expiry, to his executor, representative or disponee;
3. (c) where, before the expiry of a licence, its holder—
1. (i) has become bankrupt or has had his estate sequestrated;
2. (ii) has granted a trust deed for behoof of his creditors;
3. (iii) has become insolvent;
4. (iv) has become incapable of managing his affairs; to his trustee, judicial factor or curator bonis.
4. (d) where the licence was held by a company incorporated under the Companies Acts 1948 to 1980, to its liquidator, provisional liquidator, receiver or manager, if he has been appointed before the expiry of the licence.

(3) A licensing authority may, on an application made to them in that behalf by a person other than an individual natural person, substitute another employee or agent of the applicant for the employee or agent mentioned in sub-paragraph (6) of paragraph 5 of Schedule 1 to this Act, and in this Part of this Act references to the transfer of a licence shall, unless the context otherwise requires, include references to a substitution under this subsection.

(4) A licensing authority shall refuse an application to transfer a licence if—

1. (a) the person to whom it is proposed that the licence be transferred is not in their opinion a fit and proper person to be the holder of the licence;
2. (b) where the licence relates to an activity consisting of or including the use of premises, the person to whom it is proposed that the licence be transferred in their opinion neither is in possession of the premises nor has a right to possession conditional only upon the transfer to him of the licence; or
3. (c) where the transfer applied for is under subsection (1)(a) 152 above, in their opinion the holder of the licence is capable of giving his consent to the transfer but has not done so.

(5) A licence transferred—

1. (a) by virtue of subsection (2)(a) or (3) above, shall have effect until it would have expired had it not been transferred;
2. (b) otherwise than by virtue of subsection (2)(a) or (3) above shall have effect until the next quarterly meeting of the licensing authority and—
1. (i) if no application has been made for its renewal, it shall then expire;
2. (ii) if an application has been made for its renewal it shall continue to have effect in accordance with sub-paragraphs (4) and (5) of paragraph 9 of Schedule 1 to this Act.

(6) A licence transferred under this section shall be held subject to the conditions under which it was held immediately prior to the transfer.").

The noble Lord said: Perhaps I may deal also with Amendments Nos. 47 and 48 because they deal with the same principle. We have already covered the general question of the transfer of licences in the amendment moved by my noble friend Lord Ross of Marnock dealing with the schedule, which would affect all activities for which licences are going to be granted. This deals solely with the question of transfer of taxi licences.

While I do not want to speak at length, there are a few points which should be made, and bearing in mind again that the working party, as my noble friend Lord Ross stressed, proposed that a licensing authority should have discretion to decide in what circumstances transfer should be allowed. I know there is the argument—this was stated by the noble Earl at Second Reading, and he has repeated it again this afternoon—that a private individual should not be in a position to make a financial benefit from what is fundamentally an administrative control.

There are sound reasons why, in the case of taxis, we should take another look at this. I was pleased that at the Second Reading the Minister said that he recognised that many local authority decisions indeed have a significant capital value. He stressed in particular planning decisions which affect the financial position in many cases of the person who is applying. In a number of cases the existing taxi licence-holder has himself paid a premium to acquire both the vehicle and his licence. Therefore, if he disposes of them at a premium there is in real terms no real profit, allowing for inflation.

If the right to transfer is to be abolished then clearly there is going to be a hardship on those who have already paid a premium in order to obtain their vehicle and licence—their business. This will be severe in those many cases where the operator has borrowed money for this purpose if he has to dispose of the business with the borrowed amount not repaid, and yet is going to be refused the opportunity to transfer the licence except on the basis, as outlined by the Minister, of a person submitting a normal application. The premium could never be unduly large because a local authority would always have the option to issue further licences, even if there existed the limitation which I proposed in the earlier amendment. Therefore it would always be in the power of the local authority to decide what should be done.

The Minister said the draft clauses applying to all licensed activities had been removed because they were too complex and cumbersome. I believe there is a sound case for taxi operators to be given this right, and if the proposed clause in the consultation document was too complex, applying to all licensed activities, it should not be beyond the wit of the Government to introduce some provision to provide an opportunity in the Bill for existing taxi licence-holders to have this right of transfer. If that is not in the Bill, local authorities could easily decide not to grant a licence to a person making an application and wishing to take over a business; whereas we believe there should be that right, otherwise there will be severe hardship in a number of cases of taxi operators.

The Earl of Selkirk

Is the noble Lord suggesting that the transfer would be for money?

Lord Underhill

Of course it would be for money. When a person transfers his taxi business, that is bound to be the case. Suppose a person has borrowed money to acquire a business. He has had to pay a premium for that business, including a taxi licence. Suppose he falls ill and must dispose of it. He still owes money. He wants the opportunity to transfer the licence and the business to someone else. If he does not have that right he will be in some difficulty.

I hope the Minister will appreciate that this is not just a case of somebody trying to profit from local authority decisions. It is a case where there has been an existing practice, not only in Scotland but in England and Wales, and unless this clause—or some other provision which the Government might care to introduce—is incorporated in the Bill, what is an existing practice will continue in many areas in England and Wales but not in Scotland, and that would be unfair as well.

The Earl of Mansfield

The noble Lord, Lord Underhill, has spoken to both his new clauses and I shall do the same. As he said, the specific arrangements which were contained in the White Paper for the transferability of any licence under the Bill, not just for taxis, were dropped as a result of views expressed by the local authorities that they were unnecessary and unduly complex. I must possibly correct what the noble Lord said in respect of the Working Party on Civic Government. The noble Lord was right to say that they said on page 18 of their report that The National Federation of Taxicab Associations was strongly of the view that a taxi licence should be regarded as property which could be sold or transferred with the vehicle. While there were arguments in principle against a licence granted by a local authority being sold for private gain, it is true that decisions by a local authority can have a significant capital value, and I quoted, as did the noble Lord, the example of planning permission.

Whether in fact taxi licences should have a capital value, which I understand in some cases can be worth several thousand pounds, is a matter which causes me a certain unease, and it obviously was something which the working party thought about. At any rate, they said—and this is significant—that the proposal for transferability " raises awkward questions of equity ", and they made no specific recommendation for transferability. They merely indicated that it would be up to individual licensing authorities to exercise discretion as in what circumstances transfer may be allowed. That is what the Government have provided for in the Bill. There is no reference to transfer, it is a matter which can be decided at the discretion of the individual authorities. This continues the situation under the Burgh Police Acts, where again there is no mention of tranferability.

This question of transferability is inextricably linked with questions of limitation, although at the moment there is limitation without statutory rights of transfer. It is plain that if there is no real limitation on taxi licences, the cash value of the licence and the protected right to operate is clearly very much reduced, if not completely so, if there is no limitation on numbers of licences. And of course in that instance the incentive for a right of transfer is more reduced and the capital value would go down, if not be completely eliminated.

Thus, I think one has to settle the question of limitation before one settles the question of transferability because, as I said, one goes with the other. As I said on the previous amendment, I propose to consult the convention and various other bodies, and I shall consult them on transferability at the same time. On the basis that all this will be gone into in considerable depth, I have no doubt before the next stage of the Bill, I hope the noble Lord will see fit to withdraw the amendment.

Lord Underhill

I am grateful to the Minister for repeating his intention to consult the Convention on this matter as well. I should like to feel, in the light of the points that have been made, that he will also consult the taxi trade. He has put forward some points on which their view as well as that of COSLA should he considered by the Government. On the basis of the Minister's agreement to have consultations I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Clauses 11 to 13 agreed to.

Clause 14 [Signs on Vehicles other than taxis]:

7.29 p.m.

Lord Ross of Marnock moved Amendment No. 48A: Page 10, line 31, after (" on ") insert (" or above the roof of ").

The noble Lord said: This clause deals with signs on vehicles other than taxis and I suppose it could be construed as protection for taxis from " cowboys " or people who illuminate their vehicles or put signs on them so as to make people think they are taxis. This amendment, one in a series, is concerned with where the sign should be, and I suggest that it should be on or above the roof of the vehicle. That would be much clearer in terms of banning the use of words like " taxi " or " cab ", be it plural or singular, or " hire " or any other word having a similar meaning. This is probably the most important of the three amendments I have tabled on this subject, and I beg to move.

Lord Underhill

I should like to support my noble friend on this amendment. I know that when one is dealing with a Scottish Bill it is always dangerous to quote a Bill relating to England and Wales, but it was only in 1980 that the Transport Bill came before your Lordships. I was then involved in an amendment that dealt with roof signs on vehicles other than taxis and the words " or above the roof " appear in what is now the Transport Act 1980. They were inserted for the specific purpose of making certain that the provision would cover any sign above the roof. If we rely only upon the word "on", certain signs could fall outside the provision. I hope that the Government will accept the amendment and so bring the clause into line with a similar section in the English Act that the Government accepted as recently as 1980.

Lord Lyell

I am sure that the Committee is very grateful to the noble Lords, Lord Ross of Marnock and Lord Underhill, for speaking to this somewhat abtruse amendment, as it appears at first sight, but I hope that what I have to say will clarify the situation, even if only gently. As the Committee will see, Clause 14 attempts to deal with the problem of pirate taxis—though the noble Lords, Lord Ross and Lord Underhill, used esoteric language about " cowboys ". I do not know whether south of the Border taxi drivers are wont to wear quaint hats, heeled boots, or studded belts. However, I think that the Committee will be aware of the type of taxis that we are considering.

Certainly, this group of pirate or cowboy taxis includes vehicles that are not licensed as taxis and can thus be hailed, stopped or otherwise flagged down for hire, but which attempt to masquerade as licensed taxis. As no doubt the noble Lord, Lord Underhill, pointed out earlier, during consideration of the Transport Bill, later the Transport Act 1980, these pirate vehicles are a real problem for the public and indeed for the police, because frequently they display signs or marks of one kind or another in an attempt, no doubt often successful, to persuade members of the public that they are in fact lawfully available for flagging down or hailing in the street.

Clause 14 attempts to meet the problem by prohibiting the signs to which it relates from being displayed on any vehicle which is used for carrying passengers for hire or reward other than a licensed taxi. By referring to signs "on" the vehicle the clause prohibits such signs from being placed anywhere on the vehicle, whether it be on the roof, the sides, the boot, or any other place where they could be fixed. That would I think also cover a roof rack, which would prevent the sign from being in actual contact with the roof.

I would stress, in particular to the noble Lord, Lord Underhill, who takes a very close interest in the matter, that Clause 14 is based on, and draws on experience of, Section 64 of the Transport Act 1980, which, as the Committee is aware, applies in England and Wales. The wording of Section 64 is that which the amendment seeks to achieve, but it does not cover signs on other parts of the vehicle, and I am given to understand that this has opened a large loophole which has been duly exploited by the pirates, the cowboys, or other unlicensed taxi drivers in England and Wales. This has given much concern to the regulatory authorities and to the licensed taxi trade. For that reason the clause that we are now considering departs from the wording of the White Paper by referring to signs "on" all parts of the vehicle, not merely, as the amendment suggests, to signs on the roof, or to those that might be attached, even indirectly by means of a luggage rack or other contraption, to the roof.

I hope that I have been able to set at rest the fears of the noble Lord, Lord Underhill, over this matter. The noble Lord asked, why have we departed from the wording of the Transport Act 1980? I wish to stress to him and to the Committee that the legitimate taxi trade, which was represented by the National Federation, has welcomed the change that we are making in Clause 17, which is related to the clause that we are now considering. I hope that I have gone some way towards explaining the reasons why we do not believe that the amendment is suitable.

Lord Ross of Marnock

If I understood the Minister aright, he suggested that this was a very abstruse amendment. I suggest that in considering abstruseness he examines the Government's own proposals for a code of civic government in Scotland. On page 27 he will find, in relation to the proposed Clause 34, the words: There shall not be displayed on or above the roof of any hire car … ". Those are the very words that I seek to include in the Bill— "on or above the roof of …". That covers a sign on a vehicle or above the roof of a vehicle. If that is left out, there could be affixed to the roof a sign that would not be actually on the vehicle. So I think that most of the Minister's arguments will disappear if he examines that point.

He suggested that there was a loophole. He seemed to imply that I was limiting the provision to the roof itself; I am not. The reference is to "on" a vehicle which is not a taxi but is used for carrying passengers for hire or reward. That probably means some type of hired car or minibus. I think that the position is fully covered by the words that I propose, and for the life of me, I do not see why he has turned them down—certainly not on the basis of what he has said. I hope that the Minister will have another look at this point.

I do not know whether there has been drawn to the attention of my noble friend the great weakness of the words that he inserted in the English Bill. I should be very grateful for any further information that is forthcoming. I hope that the noble Lord, Lord Lyell, will make another effort to convince me. It may appear that I am a wee bit dense this evening, but I am not unusually so.

Lord Lyell

I had hoped that my fairly full remarks on this problem would have persuaded the noble Lord, Lord Ross. I went to some lengths to point out to him and to the Committee that the word "on" that we have included in the clause covers the problem that he raises and that his amendment is unnecessary. I shall repeat once more the reasons why we departed from the wording in the White Paper, which the noble Lord said was the bible of abstruseness issued from the Scottish Office. We made the departure because we believed that the wording had opened a loophole, and as I stressed to the noble Lord, Lord Underhill, our proposal met the fears of the National Federation. We understand that the courts have interpreted the wording " on or above the roof " very widely as referring to the roof only.

I am afraid I would not be able to come up with any better argument. Indeed, the noble Lord took time out to tease me at an earlier stage about my home being the centre of football. I would suggest to him that he should consider the number " on " the shirt " on " the back of his beloved players. Perhaps he may care to ponder on that. I think the number " on " the players' shirts is quite convincing to me. If he would think of that, then I think he might see the simile as allied to his taxi-cabs.

Lord Ross of Marnock

I shall really need to read that speech to find the grave import of it, but I could not press an amendment after a speech like that. No, I must withdraw it and reconsider it. While I am on my feet, I can inform the noble Lord the Lord Chairman that I shall not be moving the next two amendments.

Amendment, by leave, withdrawn.

[Amendments Nos. 48B and 48C not moved.]

Clause 14 agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Appeals in respect of taxi fares]:

Lord Ross of Marnock moved Amendment No. 48D: Page 12, line 24, leave out sub-paragraph (ii).

The noble Lord said: Sub-paragraph (ii) deals with the powers of traffic commissioners in respect of an appeal that has been made to them; that is, an appeal on the subject of taxi fares. Sub-paragraph (ii) says: if less than two years have elapsed since they decided an appeal against a decision of the same authority in respect of the same scale or part thereof, and they consider it inappropriate that they should consider the matter again ", then they may decline to proceed. I think that in these days of inflation this is a bit much. It is a bit much that, simply because they consider it inappropriate, whatever that word means—I do not know what it means in these particular circumstances—and simply because it is less than two years since there was an appeal against the same scale, they are allowed to decline to proceed.

Let us remember that the decision of the traffic commissioners on an appeal under this clause shall be final. That being so, I think we have to look at this a little closely, as to the fairness of it. It is simply because less than two years have passed since they looked at the question of an appeal in respect of the same scale. Two years! My goodness! I do not think they should be allowed to get away with this one for six months, far less two years. I think this is a bit unfair, and we certainly should not give them the protection of two years.

It is not that I want to see taxi fares rising and rising, but if it is less than two years they can say, " We are not going to look at it because we think it is inappropriate ". They do not need to give any reason; they just have to think that it is inappropriate. I do not think that is right; I do not think it is fair; I do not think it is just. I am sorry that my noble friend from the SDP, who thought that traffic commissioners were going to be a great protection, has gone. I wonder how he would have reacted to this. I wonder how he would have reacted to it in respect of railway fares, bus fares or anything else. Is the same power there in respect of turning down appeals against an increase in fares in respect of buses and the other matters that traffic commissioners cover? I do not know the reason for this provision at all, but I think that we should forget it. I think we should leave this subparagraph out. I beg to move.

Lord Lyell

The noble Lord has made some very important remarks about this particular clause that we have before us tonight. He, and I am sure your Lordships, will note that the whole of this clause is entirely new, that it was not contained in the (was it?) abstruse document quoted in the pale blue paper that the noble Lord was producing to your Lordships a while ago. Indeed, it was not in the consultation document. But certainly the amendment which has been moved by the noble Lord, Lord Ross, would remove from the traffic commissioners what we believe to be an important discretion not to proceed with an appeal on taxi fares in certain circumstances.

We regard the introduction of the appellate procedure in Clause 17 as a most important step forward. For the first time all the taxi trade—every single member of it—have the right of appeal on taxi fares fixed by a local authority. This also has to be reviewed in the light of the fact that local authorities, in terms of Clause 16 (which, if your Lordships will look back at page 11, line 28, your Lordships will see provides for such a review) must also review fares of taxis at least every 18 months; and, naturally, the trade may appeal on the outcome of such a review, including where the local authority decide to do nothing following such a review.

Given such an important innovation, we think it is crucial that the appellate procedure should work properly. One of the circumstances in which the appellate procedure could become overloaded and, indeed, cumbersome and all the other things that were suggested by the noble Lord, Lord Ross—unfair, unjust and all the rest—to the detriment of the taxi trade as a whole in an area, would be if the commissioners were to be swamped by frivolous and too frequent appeals. In order to guard against the possibility of such a danger sub-paragraph 18(2)(b) provides that the commissioners may decline to proceed if, on any appeal, less than two years have elapsed since the last appeal on the same scales and they consider it inappropriate to consider the matter again.

This is in no sense a bar against appeals within two years; it simply allows the commissioners to use their discretion as to whether it would really be appropriate in all the circumstances to proceed with the appeal. Not to allow such a discretion could well endanger the whole appellate procedure, and we believe this would be to the ultimate detriment of the taxi trade. For this fairly simple reason, I would suggest that we cannot accept this amendment.

Lord Ross of Marnock

I think the Minister should make up his mind. He should be very careful of his use of words. I do not see the word " frivolous " mentioned in this sub-paragraph. Nor did I mention it. He was the one who mentioned it. The word there is " inappropriate ". It is not defined. It is left entirely to the traffic commissioners, and this is one of the things to which I object. If we want the new appellate procedure to be respected and highly regarded, then I think we should start in the first instance on the basis of complete justice and fairness. Did the traffic commissioners suggest that they should have this power, or was it the Government's desire in some way or another to anticipate the wishes of the traffic commissioners? I think it is quite wrong to put this in, and to do that in this particular way. I hope the Government will think about it again.

I do not know whether the noble Lord wants to say anything before I make my decision about this amendment, but he is smiling. I do not know whether he is agreeing with every word I say, but I doubt it.

Lord Lyell

I think everybody is smiling since I indicated my dissent from wishing to add anything further to my possibly lengthy explanation.

Lord Ross of Marnock

I thought it one of the clearest explanations we have had for a long time from the noble Lord. I hope he will have another look at it because it does not entirely fit in with my ideas of justice, of fairness and the right way to proceed with this new form of appeal—bearing in mind the question of a final appeal. There is no appeal even from the point of view of law; you have got to get it right in this particular instance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Drumalbyn)

Amendment No. 48E is wrongly placed and should be Amendment No. 49. I do not propose to call it unless—

Lord Ross of Marnock

It is right; but it is in Clause 23.

Clause 17 agreed to.

Clause 18 to 21 agreed to.

Clause 22 [Interpretation of sections 10 to 22]:

On Question, Whether Clause 22 shall stand part of the Bill?

Lord Ross of Marnock

I want to ask a question on hire car or taxi. Does this cover minibus? Here we have a definition of taxis and hire car. Can the noble Earl tell the Committee whether these definitions cover minibus? More and more of these are used not as regular passenger traffic but from the point of view of taking people to particular functions, obviously on the basis of hire. Is this covered in this definition of hire car?

The Earl of Mansfield

Nothing in front of me would suggest other than that hire car means what it says, and it means any vehicle other than a taxi or public service vehicle which is quite differently provided for under the 1981 Act. If I am wrong about this, I will let the noble Lord know directly, but my instinct is that a minibus is merely a car with rather more seats in it.

Lord Ross of Marnock

So the answer is, Yes?

The Earl of Mansfield

The answer is, Yes.

Clause 22 agreed to.

Lord Ross of Marnock

I wanted to move my Amendment No. 48E.

The Deputy Chairman of Committees

I thought we agreed not to call it. Does the noble Lord think that the amendment is in Clause 17?

Lord Ross of Marnock

It is a paving amendment to the next amendment. We must leave out the word " or " which conjoins certain things and place it further down. I beg to move the amendment in my name on the Marshalled List.

The Deputy Chairman of Committees

I am afraid that I must rule that out of order. It is not to be found in Clause 17. It is to be found in Clause 23 and it is in the name of the noble Viscount, Lord Thurso. It is exactly the same thing. The noble Lord, Lord Mackie, is going to move it.

Lord Ross of Marnock

I thought that the attention of the Deputy Chairman had been drawn to it. It says, " page 16, line 31 ".

The Deputy Chairman of Committees

It is under the heading of Clause 17 on the Marshalled List. I think we could simplify matters. The noble Lord can speak on the amendment; but it is up to the noble Lord, Lord Mackie of Benshie, to move it.

Clause 23 [Second-hand Dealers' licences]:

7.54 p.m.

Lord Mackie of Benshie moved Amendment No. 49: Page 16, line 31, leave out (" or ").

The noble Lord said: Amendment No. 49 is a paving amendment for Amendment No. 50. Amendment No. 50 contains the essence of the matter. Our attention has been drawn to this in that it appears that a person who is carrying on a hire purchase business, which is a method by which an enormous amount of business of the country is done, is subject to the rules for licensing and regulation of second-hand dealers which you could say, in pure terms, he was but in fact his business is quite different. It is possible that it could be covered by Clause 23(d) which reads: a person whose business as a dealer in second-hand goods or articles is incidental to another business of his, not being that of a dealer therein ". I was assuming that this sort of thing was intended to cover a garage selling new cars and, as a part of that business, selling second-hand cars. In view of the immense importance of the financing of the general level of business in the country by hire purchase, it appeared to us that this was a sensible amendment, and I await to hear what the Government will say.

Lord Lyell

The noble Lord was seeking some clarification with his two amendments. I hope it will be convenient for me to deal with both Amendment No. 49 and Amendment No. 50. Certainly it is not our intention to bring commercial enterprises such as finance companies or anything in that nature within the scope of the clause dealing with second-hand dealers. I would therefore make it clear that we accept the principle behind these two amendments that finance houses should be exempt; but we are not entirely certain whether the amendment is required to achieve this. I would undertake to consider this amendment and, certainly, to introduce an amendment of our own if necessary.

I confirm that the Finance Houses Association wrote to my right honourable friend the Secretary of State at the end of November this year suggesting that the amendment was necessary and they drew our attention to certain amendments which had been made in relation to a number of English Private Acts which had been considered by your Lordships' House. We shall look closely at the examples quoted by them in considering whether amendment is necessary in the Bill before your Lordships now and, if so, what form it should take. I hope that that will go some way to settling the fears of my noble neighbour Lord Mackie of Benshie.

Lord Mackie of Benshie

In view of that assurance and of the attitude of the Government, I beg to withdraw Amendment No. 49. I will not move Amendment. No. 50.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Lord Denham

I understand that the noble Lord, Lord Ross, has matters of some substance to raise on the question of whether the clause stand part of the Bill. As there has been general agreement that we should rise at eight o'clock, I beg to move that this House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.