HL Deb 10 February 1997 vol 578 cc96-105

8.44 p.m.

Report received.

Clause 2 [Permitted hours in premises used to provide entertainment on Sundays]:

Viscount Astor moved Amendment No. 1:

Page 2, line 2, leave out from ("force),") to end of line 3 and insert ("after subsection (3) there shall be inserted— (3A) Subject to the following provisions of this section, the permitted hours on Sundays in any premises or part of premises to which this section applies shall extend until thirty minutes past midnight on Sunday, except that—

  1. (a) the permitted hours shall end at midnight on any Sunday on which music and dancing is not or, in the case of casino premises, gaming facilities are not provided after midnight;
  2. (b) on any Sunday that music and dancing end or, in the case of casino premises, gaming ends between midnight and thirty minutes past midnight, the permitted hours shall end when the music and dancing end or, as the case may be, when the gaming ends; and
  3. (c) in any premises or part for which a certificate is in force subject to a limitation imposed in relation to Sundays in pursuance of section 78A or 81A of this Act, the permitted hours shall not extend beyond the time specified in the certificate.
(3B) In relation to any Sunday which falls immediately before a day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971, other than Easter Sunday, subsection (3A) of this section shall have effect—
  1. (a) in the case of premises which are situated as mentioned in subsection (3) of this section, with the substitution for the references to thirty minutes past midnight on Sunday of references to three o'clock in the morning following, and
  2. (b) in the case of any other premises, with the substitution for the references to thirty minutes past midnight on Sunday of references to two o'clock in the morning following."").

The noble Viscount said: My Lords, in moving Amendment No. 1, I wish to speak to the other amendments standing in my name on the Marshalled List. I reflected very carefully on what was said during the Committee stage about protection for residents, and the series of amendments tabled in my name offers three complementary ways of tackling the problems raised. Concerns were expressed by a number of your Lordships about the difficulty for people who live near licensed premises and who want to object to the grant of a licence. It was said that it was very hard for people to persuade licensing authorities that the premises in question could be the cause of disorder or nuisance. Added to that basic difficulty was the sheer effort for an individual to register and support his or her objection. particularly when confronted with a skilful lawyer.

A possible remedy would be to attempt to reverse the burden of proof so that the onus would fall on those applying for a licence and not on those who simply want to ensure that their lives are not unreasonable affected. I made that suggestion at the Committee stage and I have looked carefully at the possibility, but have reluctantly reached the conclusion, after receiving legal advice, that that remedy cannot effectively achieve what your Lordships wish to achieve. I must emphasise that that conclusion had nothing to do with reluctance on the part of the industry to co-operate. In fact the industry was very willing to adopt the proposition. However, as I said, there were other reasons. So we went back, as it were, to stage one and looked at what I think is a more radical step to meet the concerns that were raised in Committee.

My solution is, first, to impose an earlier closing time on premises. After consultation, I have concluded that the fairest answer all round would be to impose a closing time of 12.30. That would be the latest closing time. If any local authority set an earlier closing time the premises would have to close at that earlier time. One could argue that the time should be earlier—it could be 11 o'clock or perhaps even 10 o'clock—but I tried to be realistic. This is a deregulation measure and a balance needs to be struck between removing unnecessary burdens on business on the one hand and ensuring protections for individuals on the other. My proposal achieves that balance. If one compares it with what happens elsewhere on Sundays at the moment, for pubs, last orders are at 10.30, with a closing time of 11 p.m. In restaurants it is 11.30, with drinks finished by 12 o'clock. So 12.30 for nightclubs is not an unreasonable hour.

The details are set out in Amendment No. 1. There is one small exception to which I should bring your Lordships' attention. On the four or five occasions in the year where there is a Bank Holiday Monday, the normal week-day closing time would be retained unless the local authority or licensing court imposed an earlier time. However, the same would not apply to Christmas Eve, or when it falls on a Sunday, or Easter Sunday. So it would not affect any religious holiday. Amendment No. 2 is a technical amendment consequential on Amendment No. 1.

There are two further amendments of substance which address the other concerns that were raised in Committee. Amendment No. 4 is in effect a "Keep Sunday Special" amendment. I am sorry that my noble friend Lord Brentford is not in his place this evening. Its effect is to place a requirement on the licensing justices to take particular account of the special nature of Sundays when considering applications for a special hours certificate. The amendment would give the licensing court special powers either to limit the hours of the certificate on a Sunday or to refuse to allow a certificate to operate at all on Sundays if it considered that the special nature of Sunday so required.

The final amendment in my name appears in recognition of the concerns about nuisance to residents. At present a special hours certificate can be revoked on the grounds of disorder or indecent conduct on the premises. The amendment would substitute a much lower test for that revocation and would allow a certificate to be made inoperative on Sundays where disturbance or annoyance is caused to residents. The new provision explicitly extends to disturbance and annoyance caused outside the premises. I think that that deals with the problem that was raised by my noble friend Lady Gardner of Parkes—I am equally sorry that my noble friend is not in her place this evening—about the effects on residents of noise caused by the parking of cars and the coming and going of taxis.

I hope that, taken together, the amendments will deal with all of the concerns that were raised in Committee. We have worked hard to produce them. I hope that we have produced a Bill that will be satisfactory to your Lordships' House. I beg to move.

Lord Jenkin of Roding

My Lords, I have again tabled an amendment to remove Clause 2 from the Bill entirely. My amendment has been grouped with Amendment No. 1 which my noble friend Lord Astor has just moved. I should say straightaway that my noble friend has done his best to try to meet the concerns that were expressed so forcefully by all sides in Committee. I know, however, that he will not be altogether surprised if I say that I do not think that Clause 2 can be amended to achieve the degree of protection for which residents are looking, especially those who live in close proximity to the premises we are discussing. Such residents are already subject to disturbance from Monday to Saturday. For them, the Bill has become the last straw. I remind the House that in the Royal Borough of Kensington and Chelsea there are some 94 such establishments. Even if only one-third of them were to apply for Sunday licences, that must involve disturbance to many hundreds, if not thousands, of residents.

I understand the point that my noble friend makes about limiting the hours. However, although my experience of such establishments is extremely limited, my impression is that, as compared with restaurants, it is likely that clubs and dance halls will create a great deal more disturbance as the evening breaks up and the patrons depart. Therefore, I find it illogical for my noble friend to argue that a 12.30 a.m. finish is all right for dance halls because the hour for restaurants is even earlier. I should have thought that the argument should be the other way round. What happens outside pubs varies enormously, but that is not our concern here. I think that 12.30 a.m.—on a Monday morning—is an unreasonable hour for a dance hall to close, given that the residents will have to endure all that noise and disturbance.

I appreciate also that an effort has been made to keep Sunday special and that there will be a requirement to take account of the special nature of Sundays. That will no doubt have some effect on the way in which the licensing authorities or magistrates make their decisions. I recognise also that by imposing what may well be a lower test—namely, disturbance and annoyance of the public from noise outside premises—we may make it a little easier for those who wish to oppose a licence to make their case.

However, the fact is that none of the measures really addresses the mischief. It will still be necessary for the residents to demonstrate that patrons of a particular establishment cause a nuisance. Where premises with music and dancing licences are conglomerated, as is the case in Kensington and Chelsea, that will still be a substantial hurdle for the residents to overcome. It will be necessary for them to demonstrate that noise levels that may just be tolerable on Friday and Saturday nights would be intolerable on a Sunday night. One has only to state that to realise what difficulties residents would face when making that case.

There is another problem, one which we should perhaps have raised at an earlier stage. One of the ways in which owners of such establishments can get round the way in which the restrictions are intended to operate is by making sure that the clubs change hands. New owners will often promise that the problems that occurred under the dreadful people from whom they finally acquired the premises will never occur under their management. The temptation for the magistrates or the licensing authorities to give the new owners the benefit of the doubt is overwhelming, but there may turn out to be absolutely no change at all. Furthermore, how can a new establishment be challenged, given that there will be no evidence of noise being caused?

Under my noble friend's amendments, the sale of liquor could take place up to 12.30 a.m. Given that patrons are allowed to finish their drinks, they will obviously disperse later than that—at perhaps 1 a.m. or 1.30 a.m. From experience, I must make it clear that I find that totally unacceptable—

Viscount Astor

My Lords, I interrupt my noble friend to correct him on one point. I described what happens in pubs and restaurants, but the specified time of 12.30 a.m. for night clubs is to be the hour of closure. There is no question of anybody then finishing their drink and staying on. I repeat that 12.30 a.m. is the final time.

Lord Jenkin of Roding

My Lords, I accept that that is my noble friend's intention, but one knows what happens. I took some of my family to see Guys and Dolls, a most remarkable show, the other night. When the entire crowd of hoodlums comes into the mission hall with one great oomph, the audience automatically cheers, but if my noble friend thinks that that is the way in which dance hall patrons leave at the end of the evening, he must be a great deal more naïve than I am sure he is. Of course, they do not. They take their time. Residents then have to put up with doors slamming and cars revving up.

Although the amendments are helpful and I certainly would not dream of opposing them, I do not think that they will solve the problem. In fact, I believe that the problem of Clause 2 is insoluble. What I find difficult is the point which the noble Baroness, Lady Hamwee, raised at an earlier stage. If there is to be further consideration of the results of the consultation and of the responses that have been given to the procedures to allow pubs and registered clubs to stay open until midnight on Friday and Saturday nights, why cannot this proposal be considered within the same procedural ambit? Why do we have to proceed separately with the original deregulation measure and now with this separate Bill, which appears to have the support of my noble friend on the Front Bench, whereas for the Friday and Saturday problem an entirely different procedure, with much greater consultation, is simultaneously being argued for?

Only a few weeks ago the Home Office announced that there was likely to be considerable delay and that the proposals would be considered further in the context of the way in which changes in one part of the licensing system impacted on other parts of the system. My honourable friend Mr. Kirkhope said that he expected those considerations to be concluded during the spring. I am sure that that is the right way to deal with this measure. I do not think that Clause 2 is amendable to achieve the purposes of the objectors. I honestly think that this Bill should not proceed any further. I do not intend to seek to divide the House tonight—not many noble Lords are present. However, I do think that the Bill will encounter some considerable difficulties when it reaches the other place.

9 p.m.

Baroness Hamwee

My Lords, my welcome for these amendments is a little less unenthusiastic than that of the noble Lord, Lord Jenkin of Roding, perhaps because I am a fraction of an inch further along the spectrum in favour of allowing people to do on Sunday what they can do on other nights of the week. Perhaps my presumptions are slightly different.

I entirely agree with the noble Lord on the desirability of reviewing all of the procedures together. We have a licensing system which at best is opaque to those who seek a way into it. It must be advantageous, particularly to those who seek deregulation, to clarify all of the procedure in one exercise.

I should like to put some questions to the noble Viscount. I believe he said that in the preparation of the amendments there had been consultation between the stages of the Bill. I would be interested to know who was consulted and who had an opportunity to have an input. I also ask, perhaps rhetorically, why it was not considered that the same hours should apply to clubs as to other establishments. I am concerned about the likelihood that disturbance will be spread over a longer period than would otherwise be the case. I agree with the noble Lord, Lord Jenkin of Roding, that it would not invariably be the case that those who emerged from clubs would be worse behaved than those who emerged from restaurants. I hope that I am not too prejudiced in my approach. However, that is certainly possible.

I understand the words "until thirty minutes past midnight on Sunday" to mean Monday, but in other contexts, particularly traffic orders, I have seen the most convoluted language to describe what would be understood to be half past midnight on Sunday, or some other day that has to be described as part of the following day.

I believe that the phrase "the special nature of Sunday" is helpful. Can the noble Viscount give the House any guidance as to where else this can be found in legislation, in particular whether there is any case law on its interpretation. There may be challenges to the application of improper criteria by a magistrates' court or licensing justices in their assessment of that special nature.

Finally, the new clause in Amendment No. 5 enables a chief officer of police to make an application. No doubt the noble Viscount considered whether or not a local authority should be in the same position and discounted it. Perhaps the noble Viscount would explain the thinking behind that amendment.

Lord McIntosh of Haringey

My Lords, I suppose that in the spectrum that has been described I am slightly nearer the noble Viscount, Lord Astor, than the noble Baroness, Lady Hamwee, and certainly nearer than the noble Lord, Lord Jenkin. I supported the liberalisation of Sunday trading throughout the various proceedings in this House. I still feel the same. I also believe that to treat music and dancing on Sunday differently from other days when all other aspects of entertainment and catering are not treated differently is somewhat anomalous. In the end, I believe that the noble Viscount should recognise that if the noble Lord, Lord Jenkin, is still against it this measure is dead in the water. If the honourable Member for Colchester North does not shout "Object!" no doubt someone will. At this stage of the Parliament the noble Viscount ought not to expect this measure to pass through both Houses.

The Earl of Courtown

My Lords, the feeling of the House has been made very clear during the Bill's Committee stage, and in the speeches of the noble Baroness and my noble friend Lord Jenkin this evening. Further protections following the Committee stage were required to safeguard residents against disturbance and annoyance. I believe that the amendments which my noble friend has moved meet those concerns. They offer a substantial package of extra protections for residents on Sundays, both on the initial consideration of applications for extended licensing hours and subsequently should problems occur. The earlier closing time recognises the special nature of Sundays and would provide incontrovertible protection for residents without requiring any action on their part. It would also go a long way towards meeting the particular concerns expressed at Committee stage about people having to go to work on Monday mornings.

The requirement for licensing justices to consider the special nature of Sundays when considering applications for extended licensing hours on that day would also provide front-line protection for residents by giving the courts greater discretion as to whether to limit further the closing time or refuse an extension for Sundays altogether. The extended grounds for revocation would be an additional safeguard for residents against premises which, having had their Sunday hours extended, subsequently became the cause of disturbance. These measures would substantially increase the protections which would be afforded to residents should this Bill be enacted. They demonstrate great willingness on the part of my noble friend to respond constructively to noble Lords' concerns and to ensure that Sunday dancing can take place without detriment to anyone concerned.

The Government fully support my noble friend's amendments and hope that they will be accepted by the House. In particular, I hope that they adequately meet the concerns expressed at Committee stage, although I have noted the comments made by noble Lords. I hope that my noble friend will feel able to withdraw his amendment.

Viscount Astor

My Lords, I am a born optimist and I hope to persuade my noble friend. I understand his difficulty. With great respect to my noble friend, he made what was in effect a Second Reading speech. His speech was not about my amendments but his quite proper objections to the Bill. I have taken account of what my noble friends and the noble Baroness, Lady Hamwee, said at Committee stage and tabled amendments which I believe satisfy their concerns. However, my noble friend has not said that my amendments do not satisfy his concerns.

In Committee, my noble friend said: Perhaps we can write into the Bill an obligation that the licensing justices or magistrates, as the case may be, should have regard to the special nature of Sunday evening when considering the extension of a licence into the late hours".—[Official Report, 3/2/97; col. 1498.] That is what we have done. We have taken account of those concerns, but my noble friend does not want any club to be open on Sunday. He particularly does not want any club to be open on a Sunday in Kensington and Chelsea.

That is an extreme view, because there are many areas in the country where local authorities are happy for clubs to be open on a Sunday, because they are in areas where they will not cause disturbance and nuisance to residents. We have built into the Bill a protection for those residents, because we have extended from inside the club to outside the club the protection they can receive. So, if there is noise in the street—to answer the point made by the noble Baroness, Lady Hamwee—police can move for a revocation, and the public can instigate that move by the police. It is not just the police. Anyone can say that there is noise and move for a revocation.

In my experience, local authorities are susceptible to complaints about noise these days. In Kensington and Chelsea I received a complaint myself this summer because the air conditioning in my flat which had hummed away happily—I have to say fairly uselessly—for the past 10 years suddenly decided to make too much noise. The thing had immediately to be switched off. There are remedies. Those remedies are used. We have substantially increased the powers and protections by the amendments and the Bill. I am sorry that my noble friend has not taken account of that.

My noble friend said the Bill does not address the mischief. I believe that it does. The noble Baroness asked what consultation we had had about hours. We consulted the industry and compared what happens on weekdays where, for example, pubs are open to 11.30 p.m., restaurants until 1 a.m. and clubs of course until 2 a.m. The hours we came to seemed to be a reasonable compromise and used those same staggered times. We used the same basis of stagger for Sunday.

Baroness Hamwee

My Lords, perhaps I may take that point a little further. Did not the noble Viscount find it possible to make a distinction between the location of premises? Points were made at earlier stages about some clubs being in areas where residents are directly affected, while other clubs—I am making a point in favour of deregulation here—are well away from residential areas. I wonder whether consideration was given to allowing those clubs to have a further extension of hours.

Viscount Astor

My Lords, indeed there was. We considered carefully why a club in an out-of-town centre needed to be closed at 12.30 a.m. and why it should not be allowed to open until 2 o'clock in the morning. Because of the concerns expressed in your Lordships' House it was felt that wherever one put the hours clubs could seek to argue to be allowed to open until that time. Therefore, in the spirit of trying to keep Sunday special we felt that an earlier time would be more acceptable to your Lordships, taking into account the special nature of Sunday.

The noble Baroness asked also whether we had thought about defining the special nature of Sunday. I cannot say whether that exists in other legislation. It may or it may not. I shall have to consult my legal advisers and write to her. I think that one of its purposes was to make that statement as wide as possible so that licensing magistrates and justices could take account of all the factors—noise, the special nature of Sundays, and so forth. There is no factor that they cannot take into account when considering whether or not these clubs should be open. That is the point we were trying to make. We have made it open and easy for those objections to be made.

I realise that I have a great deal to do to persuade my noble friend. I am glad that in another place the Member for Colchester is now a PPS. So he may be fully supportive of the Government, as of course he always has been. He will probably be busy in Colchester that Friday. After all, it is an important seat.

I take the point that the promoters must persuade Members of another place of the merits of the Bill and I shall try to do so. I hope that we shall persuade them that the proposals put before your Lordships tonight are satisfactory. I understand the concerns of people who say, "We never want anything open on Sundays". This is a deregulation Bill. In Scotland, clubs have been open on Sundays for 20 years, but I have not been bombarded by letters from people saying, "I have lived in Scotland for 20 years and my Sundays have been ruined". That is not the case.

We have sought to address the situation and dramatically to increase the protection available. Therefore, I hope that your Lordships will support my amendment and the Question, That Clause 2 shall stand part of the Bill.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 2:

Page 2, line 5, leave out ("subsection (1)") and insert ("subsections (1) and (1A)").

On Question, amendment agreed to.

[Amendment No. 3 not moved.]

Viscount Astor moved Amendments Nos. 4 and 5:

After Clause 2, insert the following new clause—

DUTIES IN RELATION TO SPECIAL HOURS CERTIFICATES EXTENDING TO

SUNDAYS

(" .—(1) In section 78A of the Licensing Act 1964 (limitations on special hours certificates), after subsection (3) there shall be inserted—

"(3A) Before granting a special hours certificate which extends to Sundays, the licensing justices or, as the case may be, the magistrates' court shall consider in relation to Sundays—

  1. (a) the exercise of the power to limit the certificate to particular days of the week, and
  2. (b) the exercise of the power to limit the certificate to particular times of the day.

(3B) Subsection (3A) above is without prejudice to the functions of the justices or the court in relation to the exercise of the powers mentioned in that subsection in relation to other days of the week or in relation to the exercise of other powers."

(2) In section 83 of that Act (supplementary provisions as to special hours certificates), at the end there shall be inserted—

"(5) In considering, in relation to Sundays, the exercise of any power—

  1. (a) to attach to a special hours certificate limitations to particular times of the day or particular days of the week, or
  2. (b) to vary such limitations attached to such a certificate,
licensing justices or, as the case may be, a magistrates' court shall, in particular, have regard to the special nature of Sunday.").

After Clause 2, insert the following new clause—

SPECIAL HOURS CERTIFICATES: EXCLUSION OF SUNDAYS IN CASE OF

DISTURBANCE ETC

(".—(1) After section 81A of the Licensing Act 1964 there shall be inserted—

"Special hours certificates: exclusion of Sundays in case of disturbance etc.

81AA.—(1) At any time while there is in force for any premises or for part of any premises a special hours certificate which extends to Sundays, the chief officer of police may apply to the licensing justices, or, if it was granted under section 78 of this Act, to the magistrates' court, for the imposition of a limitation excluding Sundays on the following ground.

(2) The ground referred to is that such a limitation is desirable to avoid or reduce on Sundays—

  1. (a) any disturbance of or annoyance to—
    1. (i) persons living or working in the neighbourhood, or
    2. (ii) customers or clients of any business in the neighbourhood, or
  2. (b) the occurrence in the vicinity of the premises of disorderly conduct on the part of persons resorting to the premises or part of the premises.

(3) If on an application under this section the licensing justices or, as the case may be, the magistrates' court are satisfied that the ground of the application is made out, they shall attach a limitation to the special hours certificate which has the effect of excluding Sundays."

(2) In section 81B of that Act (special hours certificates: appeals)—

  1. (a) in subsection (1)(c), after "section 81A" there shall be inserted "or 81AA", and
  2. (b) in subsection (2), after "section 81A(3)" there shall be inserted "or 81AA".

(3) In section 91 of that Act (procedure of licensing justices) for "or 81A" there shall he substituted ", 81A or 81AA".

(4) In section 92 of that Act (procedure on applications to magistrates' courts), at the end there shall be inserted— (d) an application under section 81 AA of this Act.").

On Question, amendments agreed to.