HL Deb 05 May 1993 vol 545 cc775-8

7.55 p.m.

Lord Mackay of Ardbrecknish

My Lords, I beg to move that this Bill be now read a second time. The purpose of the Bill is to amend the Licensing (Scotland) Act 1976 to take account of a change introduced by the Planning and Compensation Act 1991. The Bill, which was introduced in another place by my honourable friend the Member for Ayr, enjoys the support of the Government, the Law Society of Scotland and local authority interests. It seeks to enable licensing boards to grant licences on a firm legal basis and to avoid any risk of a prospective licensee being frustrated by a legal technicality.

Under Section 23 of the 1976 licensing Act, licensing boards may entertain an application for the grant or provisional grant of a new licence only if the applicant produces a certificate as to the suitability of the premises in relation to planning, building control and food hygiene. The certificate issued by the planning authority should state that the applicant has obtained planning permission, outline planning permission or a determination under Section 51 of the Town and Country Planning (Scotland) Act 1972 that planning permission is not required in respect of the premises concerned. A Section 51 determination has been relevant in the past in cases where no formal planning consent was needed but where any existing planning consent was expressed in terms which did not clearly cover the particular licensed use.

The problem which this small Bill seeks to remedy is that, with effect from 25th September last year, Section 51 determinations were replaced by certificates of lawfulness of existing use or development under Section 90A of the Town and Country Planning (Scotland) Act 1972. The Planning and Compensation Act 1991 repealed Section 51 of the 1972 Act but did not unfortunately bring Section 23 of the licensing Act up to date. The purpose of the Bill therefore is to provide for consequential amendment of the licensing Act by the simple addition to Section 23 of a reference to a Section 90A certificate of lawfulness of existing use or development. The existing reference to Section 51 determinations in Section 23 of the licensing Act is retained to provide for any transitional cases where a Section 51 determination might have been obtained prior to 25th September last year.

Clause 1(1) provides for the amendment of Section 23 of the Licensing (Scotland) Act 1976. Clause 1(2) adds to Section 23(2) of the 1976 Act a reference to a certificate under Section 90A of the Town and Country Planning (Scotland) Act 1972, while retaining the existing references to Section 51 determinations to ensure that those determinations made prior to 25th September 1992 remain valid. Subsection (1) of Clause 2 is the Short Title and subsection (2) provides that the Bill extends to Scotland.

It is a short Bill. It is unusual for me. It is a non-controversial Bill and it is the first Private Member's Bill that I have presented to either House. Even in my previous existence I did not seem to merit a Private Member's Bill. Just as this is my first Private Member's Bill, I am delighted to see my noble friend Lord Brougham and Vaux on the Woolsack for his first time. It is what may be called a double first for us both. I commend the Bill to your Lordships.

Moved, That the Bill be now read a second time. —(Lord Mackay of Ardbrecknish.)

Lord Mackie of Benshie

My Lords, I should like briefly to congratulate, first, the noble Lord, Lord Mackay of Ardbrecknish, on the eloquence with which he got over the unfamiliar phrases and, secondly, the Government on facilitating the Bill. It is wonderful to see a government putting right their own mistakes, and I wish that they could put right their big ones with equal facility.

8 p.m.

Lord Macaulay of Bragar

My Lords, I wish to make a brief contribution to this Second Reading discussion of a short but important piece of legislation and to join in the thanks to the noble Lord, Lord Mackay of Ardbrecknish, for introducing and explaining the Bill. It has the full support of the Law Society of Scotland, the licensed trade and all people associated with planning applications within that trade. The Bill corrects a legislative oversight which has caused difficulties in the administration of the licensing laws and, perhaps even as important, there has been associated expense, delay and misunderstanding.

The licensed trade and the Law Society of Scotland highlighted the issue and it was to the credit of the Scottish Office that it responded positively by framing the present Bill now being introduced by the noble Lord. The Bill will clarify the law in relation to applications for liquor licences and make the position clear for all concerned in the administration of the licensing laws. All parties involved will benefit from this measure, and its passing will clarify the law, eliminate confusion, frustration and needless expense and make the operation of the law in this field more efficient in Scotland. I trust that the Bill will see its way through this House and another place without opposition. I commend it from this side of your Lordships' House.

Lord Carmichael of Kelvingrove

My Lords, between two eminent lawyers perhaps I may raise a layman's point. Retrospective legislation is always a problem. What will happen to anyone who may have been caught in the void between the original legislation and the corrected legislation? Have any anomalies been created? I am sure that this is a point which only a rather legally illiterate layman could raise but it is one on which I should like the Minister's views.

8.3 p.m.

The Minister of State, Scottish Office (Lord Fraser of Carmyllie)

My Lords, perhaps I may respond briefly to this Second Reading debate before my noble friend concludes it. I begin by congratulating the noble Lord, Lord Brougham and Vaux, on taking his seat on the Woolsack for the first time. I am sure that there will be matters of great controversy other than this over which he will have to preside, but I hope that we will provide for him a pleasant memory and a realisation that, contrary to what might appear to him as a distinguished Member of your Lordships' House, sometimes on some matters relating to Scotland we are not inevitably at each other's throats.

I congratulate my noble friend on presenting the Bill. As noble Lords opposite will appreciate, I have known him for a very long time and have been in government with him. I am sure that this is not the most difficult Bill he has ever had the opportunity to introduce, but he did it with a flawless eloquence which has very much been the hallmark of his style both in the Commons and also in this House. Having paid him that glowing compliment personally, perhaps I may also say in repetition of what he said that the Bill he presents has received wide support not only in another place but from the Law Society of Scotland and local authority interests.

As my noble friend has so clearly and lucidly explained, the Bill is aimed at removing a lacuna in the Licensing (Scotland) Act 1976 arising from recent planning legislation. My purpose is simply to confirm that the Bill enjoys the full support of the Government. It is of course unfortunate that your Lordships should now have to be troubled by a particular anomaly which results from an unforeseen consequence of recent planning legislation. In the spirit of humility which is the hallmark again of this Government, I am sure that the noble Lord, Lord Mackie of Benshie, will appreciate the openness which is always so clearly shown from this Front Bench. I am grateful to him also for giving such strong support, although I suspect that the greater openness which he requests will not actually be forthcoming.

The noble Lord, Lord Carmichael, was concerned about the retrospective quality of the legislation. I say to him generally, although I am no longer, as he will appreciate, the Lord Advocate, that any questions of retrospection in legislation are, under this Government, as they have been under previous governments, matters entrusted to the Law Officers of the day to reach a determination on whether the degree of retrospection is acceptable. The Scottish Law Officers have indicated no concern over this matter. The noble Lord asked whether there is any gap in the provision. The answer is no, because, as he will appreciate, and as my noble friend indicated, it goes back to a particular date. The selection of that date is to ensure that there is no gap in the way the planning legislation and the licensing Acts interlock.

I am sure your Lordships will agree that the sensible approach where this small but important anomaly has been identified is to ensure that the matter is remedied as swiftly as possible. I am most grateful on behalf of the Government for the clear indications of support not only from those interested in local government in Scotland and otherwise but also from Opposition parties in Scotland. Given that support, I have little doubt that my noble friend will not have to rely on his skills of argument and debate at any further stage of the Bill.

Lord Mackay of Ardbrecknish

My Lords, I thank those noble Lords who have taken part in the debate. My noble and learned friend the Minister has replied to the noble Lord, Lord Carmichael, so that saves me attempting to interpret the law. I can leave it safely to him. As I said initially, it is a pleasant experience to have everyone agreeing and to be able to include, I understand, such august bodies as the Law Society of Scotland and CoSLA. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.