§ 7.33 p.m.
§ Baroness Anelay of St. Johns
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Baroness Anelay of St. Johns.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Nicol) in the Chair.]
§ Clause 1 [Licensing outside Greater London]:
Lord Meston moved Amendment No. 1.
Page 1, line 12, leave out from ("where") to end of line 16 and insert ("there is substantial evidence of a serious problem relating to the supply or use of controlled drugs at a place in respect of
which has been granted an entertainments licence under paragraph I above or at premises near such place which are under the control of the holder of the licence, and—
§ The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 5, 12, 16 and 22. I promise that this group of amendments is the only group to which I shall speak at any length. On Second Reading there was, quite properly, support from all sides of the Chamber for the principle of the Bill. However, concern was also expressed about how it might work in practice. In particular, there was concern about the fairness and the consistency of the procedures which might operate and there was also concern about the looseness of some of the wording. Some reassurances were given by the Government on Second Reading, but I have to say that they were not very convincing.
§ The first reassurance was that the powers to be given by the Bill would normally be used only as a last resort. The difficulty about that proposition is that there is no indication of it on the face of the Bill. It provides no preliminary procedures or safeguards for fairness. It is meant to be a tough Bill and I repeat that we support its principle. But its very toughness reinforces the need for some more apparent fairness.
§ The second reassurance given was that most local authorities already hold hearings before deciding to revoke a licence. The difficulty about that is the fact that the holding of a hearing is not universal and the procedures are not uniform; for example, there are no underlying rules setting out even minimum standard requirements for such hearings. The third reassurance given was that Home Office guidance would be issued to accompany the Bill when it became law. However, the guidance was not even in draft form on Second Reading, let alone being the subject of consultation with the various interested bodies. Since that time, the noble Earl has been good enough to send us a preliminary draft of the guidance, but the difficulties remain. It will only be guidance and will not be binding. I understand that in other areas of licensing law, even where there is some form of guidance, it is not necessarily adhered to. There remain variations of practice and of procedure, inconsistencies and anomalies, all of which tend to encourage appeals.
§ The first group of amendments relates to Clause 1 which governs licensing outside Greater London. In fact, they could all be applied to Clause 2 but I have not further burdened the Marshalled List. They seek to improve the Bill in a number of ways. First, they would require there to be substantial evidence of the serious 1774 problem of drug supply or use which the Bill addresses. Secondly, where the problem is not at the licensed premises but somewhere nearby, they would require the nearby place to be under the control of the licence holder. In its present form, the Bill's lack of definition of the phrase "near the place" will, I suggest, generate a considerable number of inconsistent decisions as between different licensing authorities.
§ Thirdly, the amendments would require the police, as a first step, to serve a written caution on the licence holder setting out the problem perceived by them and seeking details from the licence holder of what he has done, or what he will do, about it. In that respect, I suggest that paragraph 9 of the draft guidance is remarkably limp. Finally, the amendments would require a licensing authority to be satisfied that not renewing the licence or revoking it will substantially reduce the problem.
As regards that last part of the amendments, I should say that I recognise that the amendments of the noble Baroness, Lady Anelay, would insert the word "significantly". I certainly do not want to argue about adverbs. Nevertheless, I would suggest that the phrase within the amendment which states that the licensing authority must be satisfied that revoking or not renewing the licence will substantially reduce the problem is preferable to the phraseology which would be within the Bill if amended as the noble Baroness proposes: namely, that not renewing or revoking the licence,
will assist in significantly dealing with the problem".
§ I beg to move.
The Deputy Chairman of Committees
If this amendment is agreed to, I cannot call Amendments Nos. 2 and 3.
§ Viscount Ullswater
The noble Lord, Lord Meston, has outlined the reason why he has introduced this amendment; namely, the need for a written caution. Most of those who spoke at Second Reading introduced the concept of the requirement for this written caution. This amendment proposes that a written caution should be introduced and gives the licence holder 14 days to supply the chief officer of police with details of all the steps to be taken as regards the serious drugs problem that has been identified by the police. This matter was dealt with at Second Reading and has been ably introduced tonight by the noble Lord, Lord Meston. I believe that this gets to the heart of the matter and would overcome the difficulty of a club being ambushed by the police—this has been mentioned to me—often when that club considered it had a satisfactory relationship with the local force.
I know there is a problem as regards promoters who use premises and who might not be so careful as regards supervision or doormen. There is also the rather nasty difficulty of the operators of one club trying to disrupt the trade of a rival by unscrupulous means. The amendment would give the licence holder 14 days' grace before the local authority is informed. That is a matter of his putting his house in order or getting his house in order if this serious problem has been 1775 identified. As the noble Lord, Lord Meston, has indicated, the concept of "near" is defined in the amendment as somewhere which is,under the control of the holder of the licence".Mention has already been made of the guidance notes. I am grateful to my noble friend Lord Courtown for circulating them. I understand that they are in draft, but it is interesting to see the sort of outline that these guidance notes will take. The guidance notes are particularly weak as regards the reference to "near". Although they explain that the Bill does not elaborate the meaning of "near", the guidance notes also proceed to duck the issue.
The worry of the industry is that local authority licensing committees act in an inconsistent way across the country at present. I refer to children's certificates. The committees will continue to act in an inconsistent way. I believe that the guidance notes should be much more prescriptive than they are at present. However, they are not all bad, and I welcome them. The guidance notes indicate at paragraph 13 that there is now an important requirement to be fulfilled in that revoking a licence would have to be of assistance in dealing with the problem. My noble friend Lady Anelay wishes to insert the word "significantly" into that requirement. Paragraph 13 further states:If a local authority considers that the problem would continue unabated even if the premises were shut, then the test will not be met".That is helpful. However, it makes the need for reasons, which we shall discuss in the next group of amendments, even more important. I shall have a little to say about that when we reach it.
As I indicated on Second Reading, the guidance notes do not help at all as regards the definition of a serious drugs problem or the definition of "near" the premises. We have requested those definitions. I hope that the guidance notes will be made more helpful in that regard, otherwise the courts will have to decide the matter, and that is a slow and expensive process. I doubt that my noble friend Lady Anelay or the Government will accept this amendment. I regret that, but realistically I accept that that will be the case. Therefore we have to rely on the guidance notes which suggest that,it would be unusual for a licence holder not to be aware of police concerns before a chief officer reports to the local authority. It is expected that the report itself will refer to previous exchanges with the owners or managers of the premises".That is helpful. The guidance notes continue,It would be good practice in other than emergency cases for the local authority before reaching their decision to inquire into the extent to which the owners or managers have been made aware of the drugs problem".That is helpful, but I believe it places far too much faith in the local authority and its officials. There must be a clear duty placed on the local authority to consult with all relevant parties before acting. I believe this group of amendments achieves that objective. I commend them to the Committee. At Second Reading I indicated that I had an interest to declare; namely, I am a director of Rank Leisure Limited which operates clubs which have a public entertainments licence.
§ 7.45 p.m.
§ Lord Monson
Not long after they were published I added my name to all the amendments of the noble Lord, Lord Meston, because it was immediately evident that they admirably resolve all the fears and reservations that were expressed in various quarters of the Chamber at Second Reading about the possible injustices that might result from this Bill as originally published. As regards this group of amendments, any problem must be serious, any evidence must be substantial, any caution must be in writing, and any drastic action provided for by the Bill can take place only if it will substantially reduce the problem. Above all, where drug offences are committed nearby rather than at the premises in question, the nearby location in question must be,under the control of the holder of the licenceif a closure is to be contemplated; in other words, if the licence is to be withdrawn.
I would never claim for a moment that all club proprietors are as pure as the driven snow. However, I guess that most of them would not condone or facilitate drug taking. It would be quite wrong if innocent people were to lose their livelihoods merely because their clubs happened to be situated near an unfenced public park open 24 hours a day, or near an area such as Epping Forest where drugs can easily change hands with little fear of detection.
§ Lord Rea
This Bill concerns the use of various drugs, particularly Ecstasy. I noticed during the Second Reading debate that that was never defined as methyldioxymethylamphetamine, which the Committee will recognise puts it in the family of the amphetamines, the commonest form of speed. The use of various of these drugs by adolescents and young adults will not go away even if certain clubs are closed where there is a "serious problem". If the use of these recreational drugs on the premises by a sizeable proportion of a club's clientele were held to constitute a serious drugs problem then probably the majority of nightclubs where dancing takes place could have their licences revoked under the provisions of this Bill. The severity of the problem and the definition of "near" or "nearby" is left so open that even after taking account of the amendments of the noble Baroness there could be an uneven use of the provisions in different parts of the country. A local authority taking an authoritarian or even draconian view of the drugs problem could close most of the clubs in its jurisdiction if it so wanted. Local authorities with a more permissive outlook may seek to change the situation without recourse to the provisions of the Bill. I submit that that approach might well be more effective in bringing the drug situation more under control than use of the Bill.
However, the amendments attempt to remedy some of the defects of the Bill and make it a little more even in its use throughout the country. I strongly support them.
The Earl of Dundonald
First, I apologise for not having had an opportunity to speak at Second Reading of the Bill. Secondly, I declare an interest. I am a 1777 director of a small entertainments company based in Scotland. While not necessarily directly associated with the Bill, nonetheless I am involved in family entertainment, although not specifically with club entertainment. However, as a result I have some experience with the licensing legislation in Scotland.
I, too, support the amendments for two specific reasons. First, as regards the matter of the notice period and giving owners and managers of premises reasonable time and warning of problems, my experience in Scotland is that managers and doormen of these types of clubs in Scotland can be the cause of the problem in the first place. It is important that the directors of the companies operating the clubs are given an opportunity to put right anything that might be going on without their knowledge. That is my concern. I am not sure that 14 days is required, as long as some form of notice has been given to the registered offices of the company concerned.
Secondly—a number of noble Lords have spoken on this point—I refer to the words "near the place" in the guidance notes which the Minister has been kind enough to circulate. Number 13 states:Essentially there must be some causal link between the fact that the club is open and the drugs problem which occurs on the premises or nearby".Perhaps I may highlight a problem that we experienced in Scotland in our premises in Aberdeen. The problem does not relate to drugs but to under-age drinking. We have premises close to the university playing fields on the outskirts of town. A number of local grocery stores have been supplying drink to children aged between 12 and 14. A number of those children hung around our premises. The police helped us initially and then gave up. We had to involve a security firm to remove the children from our car-parking area and the general surroundings of the building. But that does not deal with the problem. We removed the problem from our immediate surroundings but it simply went further afield. The pavilion on the university playing fields was extremely badly vandalised. The children moved into the car park of the local Asda store which was not a million miles away.
The point is this. Children—under-age drinkers—will congregate near a place of entertainment. I submit that it is highly likely that anyone likely to use any form of these recreational drugs is likely to congregate near these clubs. It is not fair to ask the owners and managers of clubs to clear the entire area. That is the responsibility of the police. I am quite certain that responsible owners and operators of clubs in this country will co-operate closely with the police in order to move matters forward. But it is not fair to put the entire onus of responsibility on club owners for drug abuse in the proximity as defined in the guidance notes. For that reason I believe that it is important that an amendment along the lines put forward is made to the Bill.
§ Lord Gladwin of Clee
I, too, thank the noble Earl, Lord Courtown, for letting us see the draft circular. From the first reaction, I think that there will be some interest in tightening it up.
1778 In effect, the amendment wrecks the Bill. As we all know—we talked about it at Second Reading—youngsters go to raves, discos and nightclubs. Sometimes they obtain drugs inside those premises, but not infrequently they obtain drugs before they go in—in a local authority car park, a pedestrianised town centre or a bus shelter. Drugs are bought from dealers outside the premises. If the police can demonstrate that there is a causal or purposive link between the activities of dealers in, say, the car park and drug misuse in the nightclub, and that revoking the licence will significantly assist in dealing with the drug problem, then I believe that the authority should have that power to use in emergencies.
§ Lord Monson
Before the noble Lord sits down, does he accept that that could prove a great injustice to a club owner who had nothing whatever to do with the provision of the drugs outside the club?
§ Lord Gladwin of Clee
Theoretically that may be so. But as we all know, before an authority uses the power that the Bill provides, there will undoubtedly be much discussion and consultation with the licence holder.
§ Baroness Anelay of St. John
I can give the Committee the same assurance as that given by the noble Lord, Lord Meston: that this will be my longest response to the amendments tonight.
I am aware of the concerns of the club trade which underlie the amendments; namely, that the police and local authorities could be over-zealous and inconsistent in enforcing the new powers contained in the Bill. Some of those concerns were raised during the Second Reading debate. Let us be clear that the new revocation power is a tough measure to deal speedily with the worst cases. It is a power that local authorities should have available to them. It is a power that should not be watered down.
But these amendments would have just that effect. The requirement for a written caution would build in delay which would defeat the whole objective of the Bill. Likewise, too narrow a definition of the location of a problem or attempts to define the nature and weight of the police evidence or what impact revocation should have on the problem could again result in delay while those points are argued over.
I sought to keep the Bill simple and to find other ways of promoting fair and reasonable practice in enforcing the new powers. At Second Reading, and again tonight, frequent reference has been made to the Home Office circular which it is intended should be issued before the new powers come into effect. The noble Lord, Lord McIntosh of Haringey, asked for a draft of the circular to be made available to the House. As we learned tonight, that has been done. However, it is very much a first draft. Consultation has yet to take place with the local authority associations, the police and the trade. It is not intended that the circular should be prescriptive. It is designed to illustrate and promote the many examples of good practice that already exist up and down the country. Local authorities, the police and the clubs already work closely together to provide safe 1779 environments where people can enjoy themselves. The draft circular in its present form therefore deals with many of the issues that these amendments address. Where an effective relationship exists between the police and club owners there is close liaison on such matters as security, the handling of drug-related incidents and the effective exchange of information. It would be very unusual for a licence holder not to be aware of police concern before a chief officer reports to the local authority. I do not believe that there is evidence of any widespread failure on the part of the police to link up with clubs at an early stage about their concerns. The circular will, however, serve to encourage the good practice that already exists.
The new power requires local authorities to apply a two-stage test. The first stage is that there must be,a serious problem relating to the supply or use of controlled drugs at or near the place".The second is whether the action by the local authority will,assist in dealing with the problem".I have endeavoured in the amendment that will come before the Committee in due course this evening to address questions about police evidence and the test that the local authority should apply in deciding whether revocation of a licence is appropriate. Understandably, there is much interest in these definitions. The circular states the obvious in that what constitutes a "serious" problem in this context is a matter for determination by the local authority and will depend upon the particular circumstances of the case.
It can be stated with some certainty that organised drug dealing in connection with events held on the premises obviously comes into the category of a "serious" problem. So, too, will evidence of significant numbers of customers suffering the adverse effects of drug misuse. But all the circumstances of the case and the available evidence will need to be reported by the police for consideration by the local authority.
There has also been debate about "at or near the place" and whether the licence holder can be responsible for a problem that exists near, rather than on, his premises. Whether a problem is "near" for these purposes is again a matter of fact, to be determined by the local authority according to all the facets and facts of a particular case. Any elaboration on the meaning of "near" by defining it, for example, as being at a particular distance from the club concerned, would simply be too limiting. We must remember, however, that before an authority can exercise its new power it must be satisfied not only that the problem is at or near the place but also that revoking the licence would assist in dealing with the problem. There must therefore be, as the noble Lord, Lord Gladwin of Clee, mentioned earlier, some causal link between the fact that the club is open and the drugs problem that occurs on the premises or nearby. As the circular suggests, if the local authority considers that the problem would continue unabated even if the premises were shut, the tests will not be met.
1780 As I indicated, the views of the local authority associations, the police and the club trade will be sought on the guidance in the circular, and further clarification of the issues may well emerge. I hope that the Committee will agree that it is better to proceed in this way, building on good practice, rather than complicate the Bill any further. I very much hope that the noble Lord, Lord Meston, will see this as the way forward and will agree to withdraw his amendment.
§ Lord Harris of Greenwich
I followed the argument of the noble Baroness, Lady Anelay, with some care. However, I found it wholly unpersuasive. Let us determine straightaway those matters on which we agree. Do we have a major drugs problem? Yes, of course we do. Is part of that problem related to clubs? Yes, most certainly it is. Is it necessary to take vigorous action to deal with it? Yes, most certainly. But the question arises: is the Bill as presently drafted the appropriate way to deal with these problems?
On hearing the noble Baroness's argument on "at or near", I found it extremely difficult to believe that we are seriously being invited to decide whether to destroy someone's business, possibly even a small business, on the basis of evidence of that sort. We really do have some responsibility as a revising Chamber to make sure that we do not pass nonsensical legislation, or legislation which is believed to be addressed to a specific problem but which has the most unfortunate secondary effects, as I believe will be the case under the Bill as presently drafted.
If the noble Lord, Lord Gladwin, will forgive my saying so, I do not regard this amendment as even remotely a wrecking amendment. It merely sets out a procedure which would make the Bill far more acceptable to all those who will approach the problem in a mood of moderation and with some degree of restraint. The Bill as presently drafted is wholly unsatisfactory. In particular, the "at or near" issue worries me greatly.
As we all acknowledge, we live in the real world. We are probably within three weeks of the dissolution of this Parliament. Let me be quite blunt with the noble Baroness. Unless we achieve some form of acceptable compromise on this issue, the prospect of the Bill ever reaching the statute book is remote. That is blunt reality. Speaking for my noble friends, we are certainly anxious to ensure that a Bill dealing with this problem gets on to the statute book. There is no gulf between us on that matter. However, we remain deeply concerned about the Bill's drafting. I have no doubt about the noble Baroness's good intentions; however, I am afraid that the consequences of agreeing to the Bill as it is set out at the moment is very difficult for us to go along with.
In the draft circular that the noble Earl, Lord Courtown, very kindly sent to my noble friend and others, he accurately points out that the Home Office has yet to consult the local authority associations, the Association of Chief Police Officers and the club trade on the draft, which in any case may have to be amended in the light of any changes made to the Bill as it passes through Parliament. I recognise that the noble Baroness is in a difficult position, dealing with this Bill so late in 1781 the present Parliament. Although my noble friend may well withdraw this amendment (or, on the other hand he may not) I very much hope that between now and Report stage we will try to reach some agreement. It would be a great pity if the Bill simply died because of a significant difference between us on its drafting. I suspect that my noble friend Lord Meston and others, including the noble Viscount Lord Ullswater—indeed most of us—accept the existence of a significant problem, one which we all want to address but in relation to which some of us find it very difficult to accept legislation which in our view would have wholly undesirable secondary effects.
§ Baroness Anelay of St Johns
Perhaps I may intervene. When we discussed this matter at Second Reading, I tried to explain, as did the noble Lord, Lord McIntosh of Haringey, that there is no thought that a local authority would simply move in—nor could it under the powers in the Bill—to close down a club because there happened to be a serious drugs problem nearby. It has to be satisfied as to the causal link; namely, that only by closing down the club will there be a change in the drug dealing. The noble Lord will appreciate that I wish to put forward other amendments which would mean that it would be an action which would significantly assist in changing the pattern of drug dealing nearby. That was certainly a major part of discussions on Second Reading.
§ Lord Rea
I was going to draw the analogy of a chicken farm which is attacked by foxes. It is rather silly to close down the chicken farm when the source of the trouble is the local foxes. Surely it is the job of the police to deal with the dealers who are situated at or near the premises concerned?
The Earl of Courtown
We have had a very useful short debate on the first group of amendments. I re-state the Government's firm view that the tough powers in the Bill are needed to help responsible local authorities to deal with the problem of drugs in clubs.
We expect that the new powers will be used very sparingly, but local authorities should be able to deal swiftly in extreme circumstances. If these powers are diluted, as would be the case if the requirement in the amendments before us for the police to issue a caution to club owners were accepted, the purpose of the Bill would be undermined.
We are aware of the concerns of the club trade that owners and promoters might not be aware that the police regard them as having a serious problem with drug supply and misuse until a report is made to the local authority. I have to say that we have seen little evidence to justify that concern. What is apparent, however, is that many police forces and clubs are already working together to keep drugs out of clubs. Where that is 1782 happening communication between the police and clubs is regular and two-way. The Home Office circular, which Members of the Committee have seen in draft, will be used to promote good practice. It will also assist in defining some of the issues in the Bill. I reiterate that, as my noble friend said, this is only a draft Home Office circular. A great deal of consultation must take place. The Government's view is that we should avoid changing the Bill by attempting to provide tighter definitions when the fact is that only by considering the particular circumstances surrounding each individual case and by applying the two-stage test referred to by the noble Baroness can cases be resolved.
I reiterate what the noble Lord, Lord Gladwin, and my noble friend have said. The draft circular says that, if the local authority considers that the problem would continue unabated even if the premises were shut, the test will not be met.
The Government have given an undertaking to consult the local authority associations, the police and trade representatives on the terms of the circular. I hope that the noble Lord, Lord Meston, will agree that this is the right way forward and that he will not press the amendment.
§ Lord Harris of Greenwich
I hope that someone will respond to the suggestion that I made a few moments ago. If people do not respond, this Bill will die; that is certain. I have suggested that we might try between now and Report stage to reach some form of accommodation. There is no desire on our part to frustrate the intentions of those who have produced the Bill. Our concern is with the drafting. I hope that people will accept our good faith in this matter and agree to consider the possibility of some form of discussions.
The Earl of Courtown
The Government and, I am sure, my noble friend will take full account of everything said at Committee stage. Prior to Committee stage a number of noble Lords had a constructive meeting with the Minister at the Home Office. I realise that the noble Lord, Lord Meston, was unable to attend that meeting. My door is always open on the subject. My noble friend Baroness Anelay of St. Johns and I have talked to noble Lords who have an interest in the Bill. Never have we not been open to suggestions from noble Lords. However, we shall take due account of what has been said with regard to this amendment.
§ 8.15 p.m.
§ Lord Meston
I accept that the Government have responded in some measure to the points made at Second Reading by offering the meeting, which I regret that I was unable to attend, and by producing the preliminary draft guidance rather quicker than was envisaged.
In no way are these amendments intended to wreck the Bill and I dispute that they do so. They represent a serious attempt to give effect to the concerns about the Bill expressed at Second Reading and by the various responsible interested bodies. Perhaps I may deal with two matters before I seek leave to withdraw the amendment.
1783 First, several noble Lords referred to the provision for a caution. I agree with the point that the introduction of a caution procedure will encourage co-operation with the police rather than confrontation, as must be at least potentially possible if the Bill stands as it is presently drafted. A caution will concentrate the mind of the licence holder, who may not be culpable but perhaps has become a little careless. The responsible licence holder will want to respond promptly and to co-operate with the police, and be seen to be doing so.
Secondly, a caution, if not responded to, will provide the police with the best evidence for revocation in the event that the licence holder has not responded satisfactorily.
I turn to the question of the guidance. I accept that we have only seen a provisional draft but the guidance relating to the definition—or perhaps I should say the non-definition—of a place near to the premises is, frankly, unhelpful and indeed emphasises that there is a deliberate policy within the Bill as presently drafted not to seek a definition. I understand the argument. But it is said, rather blandly, that there must be some causal link between the fact that the club is open and the drug problems which occur nearby. Surely, without having to define what "nearby" or "proximity" mean in the context of the Bill, it must be right that the licence holder should be in a position to do something about the problem if his licence is to be put at risk? There must be some failure on his part, even if it is a failure to provide proper security at the door or surveillance within the club. That is why I believe that further thought must go into spelling out in the guidance, if not in the Bill, what causal link must be established before the licence is in any way at risk.
I agree with the noble Viscount, Lord Ullswater, that the guidance needs to be more focused and more prescriptive. At present it does not even have the statutory status of the Highway Code. Surely if this guidance is to provide consistent good practice throughout the country, it needs to be beefed up and to be given a greater status on the face of the Bill.
Those are perhaps points to which I can return at Report stage. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Anelay of St. Johns moved Amendment No. 2:
Page 1, line 14, after ("police") insert ("stating").
§ The noble Baroness said: In speaking to Amendment No. 2, I shall also speak to Amendments Nos. 3, 13, 14, 30, 31, 33 and 34. These amendments are designed to address the concern of club owners about the nature and weight of the evidence that the police have in proceeding to report a serious problem of drug misuse at or near a club.
§ We know that the club trade is seeking protection from the possibility that the police will go to the local authority with flimsy evidence. I believe that that is unlikely and that it is just as unlikely that a local 1784 authority would then accept either inadequate evidence or mere assurances that the police have evidence. However, some additional provision can be made in this Bill. By providing through this amendment that a chief police officer must give his reasons for saying that there is a serious problem, we are requiring in effect that the police have evidence to support their case and supply a summary of that evidence to the local authority. In doing so, the strength of the police evidence can be clearly established at the outset. I beg to move.
§ Viscount Ullswater
I welcome this group of amendments which I believe assist with the task. I congratulate my noble friend on persuading the Home Office, following the very useful meeting which we had, and on coming forward with this amendment. I think it was with regard to our concerns that it has been moved and I believe that the amendment, as it stands, helps to identify why the police consider that the problem is serious because they have to give their reasons for it.
However, I cannot give it 10 out of 10 because it only does half the job. I should like it to go on and do the other half of the job and say why, for instance, the refusal of the transfer of the licence or revocation of the licence, depending on which section it goes into, will significantly assist in dealing with the problem. That seems to me to be the other half: we have the first part stating the reasons. That indicates the seriousness of the problem and I believe that it should go on and say why the action to be taken, the revocation of the licence, will significantly—which is another amendment coming up later—assist in dealing with the problem. I believe that it is an operational matter for the police and it is the judgment of the police that the local authority must be aware of before they try to make up their mind about whether the licence should be revoked or there is a refusal of transfer. So, whereas I cannot give my noble friend 10 out of 10, I thank her for this amendment; but I should like her to take matters a little further and I hope she may give some thought to that.
§ Lord Monson
I too welcome this amendment so far as it goes. But at the risk of sounding as if I am being carping, I have to point out to the noble Baroness that giving reasons is not the same as giving evidence—hard, solid evidence.
The Earl of Courtown
The Government's view is that these amendments deal with the club trade's concerns about what evidence the police would supply to the local authority to substantiate that there is a serious problem of drug supply or misuse. As regards the basis of the police evidence, I suggest that it is very unlikely that a Chief Officer of Police will make a report to the local authority on the basis of unsupported allegations by his officers. No doubt he will look to provide, and the local authority will expect, facts and figures about arrests, incidents of disorder or casualties from drug misuse, therefore requiring the chief officer to give his reasons for saying that there is a serious problem should clarify the issues for all concerned.
1785 The Government fully support my noble friend's amendments. They are the first of several that address concerns expressed on behalf of the club trade and I hope they will be accepted by the Committee.
§ On Question, amendment agreed to.
Baroness Anelay of St. Johns moved Amendment No. 3:
Page 1. line 16, at end insert ("and giving reasons for his view that there is such a problem.").
§ The noble Baroness said: I spoke to Amendment No. 3 with Amendment No. 2. I beg to move.
§ On Question, amendment agreed to.
Lord Meston moved Amendment No. 4:
Page 1. line 16, at end insert—
("( ) A copy of any report from the chief officer of police received in accordance with sub-paragraph (1) above shall be sent by the licensing authority to—
§ The noble Lord said: In speaking to Amendment No. 4, I speak also to Amendments Nos. 7, 15 and 18. These amendments are self-explanatory. I suggest they provide elementary fairness and commonsense in proposing that a copy of a police report should go to those most affected by it and it should go to them before the licensing authority considers its decision. Surely the licence holder is entitled to know what is said about and against him and what is said about the alleged problem. Surely also the authority should not consider the drastic action of revocation until after the licence holder has received a copy of the police report which is to be the basis of the decision which may be made about the licensed premises.
§ I also suggest that the last known owner of the premises is entitled to know what is said to be going on. He, the landlord, may have his own rights and remedies as well as his own legitimate interests to protect. It may be, following through the thinking behind the Bill, that a stick waved by the landlord may be just as effective as a stick threatened or waved by the police and the licensing authority.
§ It has already been suggested that my earlier amendments were seeking to water down the Bill. I deny that suggestion and indeed I have not sought, as certain outside bodies were seeking to persuade me to do, to introduce complex procedures as a preliminary to the exercise by the licensing authority of its powers under this Bill. The time limits provided for are not intended to be generous. It should enable swift action to be taken, but at least to be taken fairly. I beg to move.
§ Lord Monson
This group of amendments is very much less far reaching than our first group of amendments, as I am sure everybody will agree, and 1786 I do not think anybody could seriously accuse them of being wrecking amendments. For that reason, I hope they can be accepted by the noble Baroness.
§ Viscount Ullswater
I only rise to support the concept that the owner should be included on the provision of any report. The guidance notes state that good practice should include this close liaison between the police and club owners and managers on the handling of drug related incidents. Also, the local authorities should inquire into the extent to which the owners have been made aware of the drug problem. I believe that this amendment, with the inclusion of the last known owner, makes certain that the owner, rather than necessarily the licence holder, is included in that notification. It is a very minor amendment and I hope that my noble friend may consider that the Government's objective of tackling drugs together could be well served by this.
§ Baroness Anelay of St. Johns
Some consideration has already been given to the content of the police report in such cases. The Home Office draft circular contains some guidance on the content and processing of the police report. It is not possible to anticipate in advance the range of circumstances that might amount to a serious problem and should be reported to the local authority. However, it is possible to conceive that the police might need to report to the local authority while an investigation is on-going and where suspects still have to be charged with offences. In these circumstances, the publication of sensitive information might well have operational implications for the police or indeed be prejudicial to the individuals involved.
With this in mind, I am opposed to any requirement for a detailed police report to be served on a licence holder. I suggest, however, that this issue could be examined in the course of consultations with the local authority associations, the police and the club trade on the draft circular as a whole to see what further guidance might be offered.
In addition, there is the question of delay which would be built in if the police report had to be served on a licence holder and the last known owner. This again would delay emergency action from being taken in the worst cases. I hope therefore that the noble Lord, Lord Meston, will agree not to press these amendments.
§ Lord Harris of Greenwich
The noble Baroness says every time that she hopes the noble Lord, Lord Meston, will not press his amendment; but it requires a more adequate explanation than the noble Baroness has just given. I can understand the point, but the first argument she deploys is: what happens if there is an on-going investigation? That is a problem. I assume it is not a problem raised by the police. The letter of the noble Earl, Lord Courtown, makes it quite clear that the Association of Chief Police Officers has not yet been asked to express their views on this matter. Therefore, this is not a police concern given the fact that the police have not yet been consulted according to the noble Earl.
Then the noble Baroness uses this argument which freezes the blood in my veins: the danger of delay. There can be certain circumstances when one is 1787 investigating possible criminal offences when there are problems associated with delay. But we are talking here about the potential destruction of someone's business. Are they not entitled to some element of delay which enables them to understand why, in fact, it is being suggested that their business should be destroyed? I find it astonishing that while noble Lords opposite talk with great regularity about small businesses—and I agree with their views entirely—when it comes to a small businessman in this area, their interests are swept aside as being a matter of no account whatever.
I have already said once—I shall not boringly repeat it—that I very much hope that we shall address these issues in some form of informal discussions between this Committee stage and Report stage. Frankly, unless we try to reach some form of agreement on this matter, I fear that this measure, which in my view is potentially of quite considerable value, will perish and that would be a pity.
§ 8.30 p.m.
The Earl of Courtown
I am sorry to have tried to interrupt the noble Lord earlier. I should like to make just one point, and my noble friend may have already mentioned it—I think I have in one of my speaking notes. The fact is that these measures will be used in exceptional circumstances. There will be a proved background of drug abuse—and more than drug abuse, drug peddling. We have to take that into account.
§ Lord Harris of Greenwich
I understand the "exceptional circumstances" argument. But no words like "exceptional circumstances" appear on the face of the Bill. None of us doubts that there is a real problem here. It is a very substantial problem. Anyone who has gone round the police forces in this country knows perfectly well the number of occasions on which this particular problem has been raised. I do not have to be persuaded that there is a problem. I need to be persuaded that this Bill, as drafted at the moment, will satisfactorily address the problem, without doing grievous damage to the interests of people who will have their businesses wiped out of existence without a proper opportunity of explaining the position and having adequate protection.
I hope that this matter will be looked at seriously between now and Report stage. Otherwise, I fear that the consequences as regards the Bill will be very disagreeable.
§ Lord Meston
These amendments are not concerned with the content of the police report but only with its direction and the potential for it to be received by those who will most likely be affected. It is certainly not intended to delay what I accept should be quite a swift procedure in urgent cases.
I do not find convincing the argument that there is a reason for not sending the report to the licence holder; namely, that the material within the report may somehow be sensitive. Surely by the time the police have decided that it is appropriate to seek to have the premises shut down or the licence altered in some way, 1788 the police will have their tackle in order. The evidence will be already assembled and must be sufficient to persuade the licensing authority that the drastic action proposed by the Bill has to be taken. I simply do not see the likelihood of information that is still sensitive having to be put in the report or, indeed, having to be left out of the report if it is to be sent to the licence holder.
I respectfully agree with the point made by the noble Viscount, Lord Ullswater. My intention was that the owner of the building rather than necessarily the owner of the business should have a copy of the report because, as I said, he may have rights, remedies and interests of his own.
The noble Baroness, Lady Anelay, said that that matter may be satisfactorily covered in a further version of the guidance. I hope that it may be. But the fact that she has just said so reinforces, in my view, the need to give the guidance a proper status on the face of the Bill and ensure, before the Bill becomes effective legislation, that the guidance is in proper form. On that basis—and that basis alone—I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 5 not moved.]
Baroness Anelay of St Johns moved Amendment No. 6:
Page 1, line 19, after ("will") insert ("significantly").
§ The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 17, 23, 32, 35 and 36. In the light of views expressed by the club trade about the basis on which the local authorities might take decisions to revoke or not renew a licence, I looked again at the test to be applied. At present the Bill requires a local authority to apply the test. The revocation will simply assist in dealing with the drugs problem in question. However, I readily acknowledge that the authority ought not to revoke when it considers that the improvement will be negligible or minor.
§ In trying to improve on that, we are again presented with linguistic difficulties. The noble Lord, Lord Meston, suggested that the test should be that a non-renewable licence will substantially reduce the problem. However, I do not believe that that will quite do, as it implies that there is some acceptable level of drug misuse which should be allowed to continue unchallenged.
§ Instead, these amendments adopt the test: the revocation or renewal will significantly assist in dealing with the problem. If accepted, revised guidance on the issue will be included in a circular. The current draft already establishes that the authority must be satisfied that revoking a licence will assist in dealing with the drugs problem and if the authority considers that the problem will continue unabated, even if the premises are shut, the test will not be met. I hope that the Committee will accept the amendments. I beg to move.
The Earl of Courtown
The Government's view is that these amendments deal with the club trade's 1789 concern about what evidence the police would supply to the local authority to substantiate that there is a serious problem of drug supply or misuse.
As regards the basis of the police evidence, I suggest that it is very unlikely that a chief officer of police will make a report to the local authority on the basis of unsupported allegations by his officers. No doubt he will look to provide, and the local authority will expect, facts and figures about arrests, incidents of disorder or casualties from drug misuse. Requiring the chief officer to give his reasons for saying that there is a serious problem should clarify the issues for all concerned.
The Government fully support my noble friend's amendments. They are the first of several amendments that address concerns expressed on behalf of the club trade. I hope that they will be accepted by this Committee.
§ On Question, Amendment agreed to.
§ [Amendment No. 7 not moved.]
Lord Meston moved Amendment No. 8:
Page 1, line 19, at end insert—
("( ) The authority shall not refuse to renew or to transfer a licence on the grounds set out in sub-paragraph (2) above without affording the licence holder and (in the case of an application for the transfer of the licence) the person to whom the licence would be transferred if the application had been granted an opportunity of being heard by the authority and of making representations to the authority.").
§ The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 10, 11, 19, 21 and 24. Again, the amendments are self-explanatory. They provide the licence holder with the elementary right of an opportunity to be heard.
§ The guidance, in its original form, refers to natural justice. But the fact is that, even where good practice is operated by licensing committees, I understand that there is no uniformity of practice or procedure. Sometimes the licence holder would be allowed only a few minutes to speak at the start of the proceedings, if at all.
§ As presently drafted, the Bill allows for representations only after the event; in other words, on the face of the Bill the first opportunity for the licence holder to put his point of view comes after the decision has been made and that may possibly have been a decision which would not have been made if he had had a proper opportunity to speak beforehand. As has already been said, the decision, once made, may come too late for him to save his business. Accordingly, I beg to move.
§ Viscount Ullswater
I should like to draw the Committee's attention to Amendment No. 19. It offers the licence holder an opportunity to be heard.
Revocation on a report from an officer of police is a new situation and there is no precedent for granting a hearing. This amendment provides that opportunity. The guidance notes are helpful in that they state that it is 1790 clearly important that the requirements of natural justice are met when a local authority is considering taking such action. At that point, the guidance refers to the non-renewal or revocation of a licence. The guidance notes go on to state that it will be good practice to continue the current arrangements, and the current arrangements are that when there is a non-renewal of a public entertainments licence there will be hearings in relation to that. They provide the licence holder with a similar opportunity to be heard when a local authority is to consider acting upon a police report of a serious drugs problem. However, this is in the guidance notes; it is not on the face of the Bill.
This is a new situation. It does not offer the operator an opportunity of a hearing. It suggests that the guidance be followed. What we are interested in is that there should be consistency offered by the local authority licensing committees and that they should give the opportunity of a hearing. This amendment puts that right, if I can call it a right—I believe it is a right—on the face of the Bill. There is always a disclaimer in the guidance notes because of exceptional circumstances, and they can be overridden.
I will not say any more during the course of this Bill because I have come to the end of what I want to say. If the guidance notes are all we are going to have, then I hope that the Home Office considers very carefully what all the people who are going to be consulted have to say about them. I know that my noble friend has said that they are in draft; they are perhaps a little loose and need tightening up. As the noble Lord from the Opposition Front Bench said, they probably need quite a lot of work done on them. I believe that they do, and I have pointed out some areas where they are loose and need to be tightened up. I hope my noble friend Lady Anelay and my noble friend on the Front Bench will give consideration to this.
§ Lord Monson
I support this group of amendments because they accord with natural justice. The term "natural justice" has been used quite a lot in the last few minutes. There is nothing wrong with that; I do not believe that it can be stressed often enough. That is what we are aiming for.
§ Lord Gladwin of Clee
At the Second Reading debate my noble friend Lord McIntosh of Haringey made two succinct points. First of all, he made it clear that he wished to see this Bill go through and did not want it destroyed by complicated legal amendments. Secondly, he said that he would listen to amendments but would not be convinced by amendments which seek to remove the central purpose of the Bill, which is immediate revocation. These amendments deny the local authority the ability to act quickly in an emergency. Therefore, we cannot support them.
§ 8.45 p.m.
§ Lord Harris of Greenwich
I am becoming increasingly concerned about the quite extraordinary arguments being deployed by the noble Lord, Lord Gladwin. The idea that one is going to punish a person without hearing from him, is the proposal that is being 1791 made, on the basis of what the noble friend of the noble Lord may or may not have said when this Bill was debated on Second Reading. I hope that when we are discussing legislation we are going to take some account of the many honourable, honest people who are involved in this business. The idea that one would punish people first and listen to them second is a principle very difficult to accept in any form of democratic society. I am most surprised to hear it from the noble Lord, Lord Gladwin.
I fear that I am being boringly repetitious, but I hope this matter can be looked at between now and the Report stage of this Bill. Having said this now on a number of occasions, I will not say it again.
§ Baroness Anelay of St. Johns
I certainly hear and understand what the noble Lord, Lord Harris, means by his comments. He referred earlier to his blood being chilled by some of the things I said. If he had been able to take the opportunity to take part in the Second Reading of the Bill, he would have learnt then that my blood runs cold at the attempts of the very small minority of bad club owners who do not take away the livelihood of small businesses, but take away the lives of young people. I appreciate that the club trade is quite properly anxious, in the event—I would hope very rare—that the police report to the local authority that a club is considered to have a serious problem of drug supply or drug misuse, that it should have the chance of a fair hearing.
My understanding is that it is the current practice of local authorities to hold hearings where the non-renewal of a public entertainment licence is a possibility. In such circumstances the licence holder is able to attend and be represented. Some consideration has been given in a draft Home Office circular to the basis on which local authorities already hold hearings and some guidance is offered. This recognises that the consequences of non-renewal or revocation under the new arrangements are serious. I take that point, given that the licence holder will not be able to operate the club pending the hearing of any appeal. Therefore, it follows that it is important that the requirements of natural justice are met when a local authority is considering taking such action.
The Bill does not prescribe any procedure in this respect, and it is for local authorities to decide what procedural safeguards to adopt in the interests of fairness. The draft circular suggests that it would be good practice to continue the current arrangements and provide the licence holder with a similar opportunity to be heard when a local authority is to consider acting upon a police report of a serious drugs problem.
However, this Bill is particularly concerned with the exceptional cases where urgent action will be necessary, and in such cases a local authority may have to decide to depart from its normal procedures. With this particularly in mind, I would not wish to see a local authority required to hold a hearing in every single case. We know already that the Home Office circular will be subject to a consultation process and the conduct of 1792 hearings will undoubtedly receive further consideration at that time. In view of that I hope that the noble Lord, Lord Meston, will agree to withdraw these amendments.
§ Lord Meston
The fact is that ideas of natural justice vary between different bodies, different employers and different organisations. It is because of that and because of one's experience of that fact that I have sought to put this on the face of the Bill rather than relying on a passing reference to it in the guidance notes or circular, or whatever it may be.
It is certainly not my intention to complicate this Bill with unduly legal amendments. On the contrary, I would suggest that amendments along the lines that I have been proposing will in many ways make this Bill lawyer-proof, proof against applications for judicial review and possibly even immune to applications to the European Court of Human Rights. However, that point is not something to develop at this stage. The fact is that practice without regulation from central government or the Home Office on the face of the Bill will continue to allow for the diversity of practice which those who operate in the field are complaining about. That is something to which we must clearly return at a later stage of this Bill. Meanwhile, I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Trumpington: I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.