HL Deb 10 March 1997 vol 579 cc81-9

7.30 p.m.

Baroness Anelay of St. Johns

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

Moved, that the House do now again resolve itself into Committee.—(Baroness Anelay of St. Johns.)

On Question, Motion agreed to.

House in Committee accordingly.

The DEPUTY CHAIRMAN OF COMMITTEES (Lord Strabolgi) in the Chair.]

Clause 1 [Licensing outside Greater London]:

Lord Meston moved Amendment No. 9: Page 1, line 25, at end insert ("; and (c) the last known owner of the place.").

The noble Lord said: The amendment raises a topic upon which I have touched previously in the course of the Bill's progress. I have not yet received a response, possibly because it deals with only a relatively minor point. In moving Amendment No. 9, I speak also to Amendment No. 20.

The amendment suggests that the last known owner of the premises concerned should also be served with the licensing authority's reasons for deciding to refuse to renew or transfer the licence under the provisions of the Bill. The landlord has rights and remedies of his own which may be valuable in supporting the principle underlying the Bill; namely, to ensure that those who are responsible for licensed premises operate properly and take proper measures to protect the people who may be tempted to come there. The landlord has interests of his own to protect and should be informed at an early stage if the licence is in jeopardy. The landlord may be in a position to exert pressure on the licence holder in addition to pressure brought by the police or the licensing authority.

I accept that to some extent the amendment is imprecise. It simply refers to the last known owner of the place".

It does not indicate to whom the knowledge should be ascribed. It does not distinguish between a freehold owner and a leasehold owner. I hope that the principle underlying the amendment, and the suggestion implicit in it, finds favour with the Committee. I beg to move.

Lord Monson

This is a modest but useful pair of amendments. I hope that the amendments can be accepted. As the noble Lord said, the owner has a wholly legitimate interest in what goes on in his property. He—it may be an individual or a corporate body—is better placed than most to lean upon the tenant, who is presumably the licensed holder, to persuade him to do everything in his power to eliminate drug dealing from the premises in question.

Lord Gladwin of Clee

This power is to be used in an emergency situation. If the owner has had the wisdom to be the joint licence holder, he will of course be told. But I am anxious that no provision is inserted into the Bill that will inhibit the local authority from acting speedily. The responsibility of telling the owner must lie with the licence holder. If they are joint licence holders, he will be told. I hope that the amendment will be considered again because I believe that there is a danger that it could delay the implementation of the Bill.

Baroness Anelay of St. Johns

As the noble Lord, Lord Meston, explained, the purpose of the amendments is to ensure that the owners of premises who are not necessarily the licence holders are kept informed of any action by the local authority. I appreciate the reasons that the noble Lord, Lord Meston, moved the amendments and the arguments put forward by the noble Lord, Lord Monson.

Perhaps I may give an explanation as regards the consultation procedure of which noble Lords may not be aware. The need to inform third parties who have a significant economic interest in any enforcement action is covered by the enforcement procedures in the Deregulation and Contracting Out Act 1994. The application of those procedures to public entertainment licensing generally is currently the subject of consultation. That consultation is already well advanced. In the circumstances, I hope that the noble Lord, Lord Meston, will agree to withdraw the amendments.

The Earl of Courtown

The Government understand the concerns that those who have a significant interest in premises other than the licence holder should be kept informed of any enforcement action taken by local authorities under the Bill. As my noble friend said, public consultation is currently under way about the possible application to public entertainment licensing of the five enforcement powers in the Deregulation and Contracting Out Act 1994. One of those powers relates specifically to keeping third parties with a significant economic interest in a business informed of enforcement action against the licence holder. In the circumstances, I hope that the noble Lord will not press the amendment.

Lord Meston

I am grateful for the information from the noble Baroness and the Minister. It is reassuring to know that something is being done under the umbrella of other legislation.

Perhaps I may deal with one point raised by the noble Lord, Lord Gladwin of Clee. The provision would in no way inhibit swift action in an emergency. The provision deals with notifying a landlord after the decision has been made. It presupposes that the Bill is enacted in something like its present form. Therefore the amendment provides simply that the landlord is told that the decision has already been made, not that it is being contemplated. I do not believe that it would hold up in any way the processes of the Bill as they may operate in seriously urgent cases.

However, having heard what I have heard, I am more than happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 to 12 not moved.]

Baroness Anelay of St. Johns moved Amendment No. 13: Page 2, line 10, after ("police") insert ("stating").

The noble Baroness said: I spoke to Amendment No. 13 when I referred to Amendment No. 2. I beg to move.

On Question, amendment agreed to.

Baroness Anelay of St. Johns moved Amendment No. 14: Page 2, line 12, at end insert ("and giving reasons for his view that there is such a problem.").

The noble Baroness said: I spoke to this amendment with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 15 and 16 not moved.]

Baroness Anelay of St Johns moved Amendment No. 17: Page 2, line 17, after ("will") insert ("significantly").

The noble Baroness said: I spoke to this amendment with Amendment No. 6. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 18 to 22 not moved.]

Baroness Anelay of St. Johns moved Amendment No. 23: Page 2, line 37, after ("will") insert ("significantly").

The noble Baroness said: I spoke to this amendment with Amendment No. 6. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees

I have to inform the Committee that if Amendment No. 24 is agreed to, I cannot call Amendment No. 25.

[Amendment No. 24 not moved.]

Baroness Anelay of St. Johns moved Amendment No. 25: Page 2, line 44, leave out from ("where") to end of line 46 and insert ("a decision is made under paragraph 6A(5) or 11A(4) above means the date on which the person in question is notified of the decision.";").

The noble Baroness said: In moving this amendment, I shall also speak to Amendment No. 38.

Again, these amendments respond to points raised by the club trade. Members of the trade are worried that in providing for the start of the period within which a licence holder may bring an appeal against a local authority revocation or non-renewal, from the date on which those representations are considered, under the Bill as presently drafted there may then be a delay which could cut down the time allowed for the appeal.

This amendment therefore proposes that the time for the appeal should run from the date on which the person in question is notified of the decision rather than from the date on which representations are considered. I accept that that would indeed be a fairer approach. I beg to move.

Lord Meston

I am grateful to the noble Baroness for having brought forward this amendment. It introduces a measure of clarity into the Bill that was lacking in the original draft.

The Earl of Courtown

As my noble friend said, these amendments respond to the suggestion that the licence holder could be disadvantaged by dating the appeal period from when representations are considered. This amendment would change that, to start the appeal period running from when the licence holder is notified of the decision taken by the local authority. The Government support the amendment.

On Question, amendment agreed to.

Baroness Anelay of St. Johns moved Amendment No. 26: Page 2, line 46, at end insert— ("() in sub-paragraph (3) (appeals against decision of magistrates' court), after "under this paragraph" insert "or under paragraph 12(5) above";").

The noble Baroness said: In moving this amendment, I shall also speak to Amendment No. 39.

It was brought to my attention that there was a difficulty with the Bill as it stands if, when a magistrates' court decided to revoke a licence after a conviction for breach of a licence condition, the person who lost his licence was not also the offender. An offender can already appeal against a sentence under Section 108 of the Magistrates' Courts Act 1980; but a licence holder who is not the offender would have to rely on the case stated procedure. This amendment establishes clearly the right of appeal of the licence holder in such circumstances from the decision by a magistrates' court to revoke a licence. I beg to move.

The Earl of Courtown

The Government support this amendment. It establishes the right of appeal to the Crown Court against the decision to revoke a licence by a magistrates' court after a conviction for breach of a licence condition in circumstances where the licence holder is not also the offender.

On Question, amendment agreed to.

7.45 p.m.

Lord Meston moved Amendment No. 27: Page 3, line 8, after ("licence") insert ("and any special hours certificate granted under section 77 of the Licensing Act 1964").

The noble Lord said: In moving this amendment, I also wish to speak to Amendment No. 29. These amendments concern the impact of the Bill as presently drafted upon the special hours certificate.

The position, as explained at Second Reading, appears to be that, even if a licence under the provisions of the Bill is reinstated either pending appeal or as a result of appeal, it does not automatically revive the special hours certificate, for which there are separate procedures. I believe that was an oversight in the drafting of the Bill. It is for that reason that these amendments were tabled. I notice that they are grouped with Amendments Nos. 40 and 41 in the name of the noble Baroness, Lady Anelay, which leads me to suspect that her amendments are probably better drafted than mine. Nevertheless, if we are all rowing in the same direction, I should be grateful to hear it. For the purposes of introducing the debate, I beg to move.

Baroness Anelay of St. Johns

In responding to the comments of the noble Lord, Lord Meston, in relation to his Amendments Nos. 27 and 29, I should also like to speak to my Amendments Nos. 40 and 41 to which he referred.

The difficulty with the Bill as it stands and as outlined by the noble Lord, Lord Meston, was raised by the club trade. The difficulty was also brought to my attention by the justices' clerk to my own Bench in Woking. As the noble Lord, Lord Gladwin of Clee, will know, when he tells me something I believe him—more or less, and certainly on this occasion. I recognise that in the event of a successful appeal, a club ought not to be penalised by a delay in re-obtaining its special hours certificate, which would have lapsed automatically with revocation or non-renewal of a public entertainments licence.

The amendments in my name rectify the position by enabling any special hours certificate to be reinstated in the instance where a licence is reinstated by a local authority following representations by the licence holder, and also in the event of a successful appeal against revocation in the courts. I hope that, in the circumstances, the noble Lord, Lord Meston, will accept that my amendments deal adequately with the issue and will agree to withdraw his amendments.

Lord Gladwin of Clee

Perhaps I may join the noble Baroness in deferring to the learned clerk of the North West Surrey Bench. I, too, therefore prefer the wording of Amendments Nos. 40 and 41 to that of the amendments tabled by the noble Lord, Lord Meston.

The Earl of Courtown

My noble friend and the noble Lord, Lord Meston, have recognised that club owners whose appeals are successful will be disadvantaged if they then have to wait while their application for a special hours certificate is processed. Amendments Nos. 40 and 41 rectify the position. They are supported by the Government.

Lord Meston

Sometimes it is very irritating that magistrates are so supine that they always do what their clerks tell them. However, on this occasion I am more than happy that at least two of the magistrates present in the Committee this evening have accepted the good advice received. On the basis of the argument we have heard, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Meston moved Amendment No. 28: Page 3, line 12, at end insert— ("(7B) An authority which refuses to renew or revokes a licence under paragraph 6A or 11A above may order that the licence shall remain in force (subject to such terms, conditions and restrictions as may be imposed)—

  1. (a) until the time for bringing an appeal against the refusal to renew or revocation has expired; and
  2. (b) if such an appeal is duly brought, until the determination or abandonment of the appeal,
and if such an order is made any special hours certificate granted under section 77 of the Licensing Act 1964 shall also remain in force for the same period.").

The noble Lord said: This amendment takes up a point raised at Second Reading and draws attention to an apparent anomaly in the Bill. At Second Reading, the noble Earl confirmed that it was not possible that, where the local authority revokes a licence, the licence can be kept in being pending an appeal, albeit temporarily, but if the revocation is ordered by the magistrates' court, the court has power to order the licence to remain in force pending appeal. That does appear to be an anomaly. If the court may do it, why cannot a local authority do it, exercising a similar power with a similar right of appeal? It is common for there to be a provision for a stay pending appeal. That provision is discretionary; the stay is unlikely to be granted if the appeal appears to the authority or the court concerned to be absolutely hopeless. However, it deprives the licence holder of the opportunity to persuade the authority to keep the licence in being pending an appeal if the licence holder can give reassurances that he or she will do whatever is required of him or her to keep the business on the straight and narrow pending an appeal. The alternative may be that the fruits of his appeal are lost to him because, although he may win on his appeal, his business is gone. That must be a matter for discretion. I do not suggest that the discretion need be exercised generously, but it is an anomaly on the face of the Bill which I question seriously. For that reason, I beg to move the amendment.

Baroness Anelay of St. Johns

The thinking behind the amendment appears to be that there will be cases, perhaps on the margin, where, despite a local authority accepting that there is a serious problem relating to the supply and use of drugs at or near the premises and that the licence should be revoked, there may still be circumstances which would lead a local authority to let the club stay open pending the outcome of any appeal.

I cannot see why such a power could be useful or relevant in those circumstances. The Bill provides that if the authority decides to take action, it can either revoke the licence or impose terms, conditions or restrictions after satisfying itself that to do so will significantly assist in dealing with the problem. A local authority is convinced either that varying the terms and conditions and allowing the club to stay open is justified, or that the problem is so serious that the club should close forthwith.

We must accept one of those two. If accepted, the amendment would only produce further uncertainty and the opportunity for indecision. I am sure that local authorities are perfectly capable of considering all the evidence as it arises and making the correct decision at that stage. I ask the Committee to reject the amendment.

The Earl of Courtown

The provisions of the Bill give the authority clear options, as stated by my noble friend. After hearing all the evidence, it may decide to take no action and impose terms and conditions or revoke the licence after satisfying itself that to do so will assist in dealing with the problem. If the step to revoke the licence is taken, that should be the end of the matter. We should avoid introducing further complications by allowing the option of letting a club stay open while it goes through the appeals process. I join my noble friend in asking the Committee to reject the amendment.

Lord Monson

Does the noble Earl agree that the court has power to allow that to happen? Why should the court have the power but not the authority?

The Earl of Courtown

The noble Lord raises an interesting point, but I do not have the answer. The noble Lord, Lord Meston, also raised some interesting points and if the Committee will allow it, I shall write to both noble Lords.

Lord Meston

It is a point of consistency which was raised at Second Reading. For the life of me, I cannot see why a local authority should not have the same power, albeit a power exercised sparingly, as is undoubtedly given to the court in analogous situations. It is that point and that point alone which motivates the amendment.

The Minister said that the licensing authority makes its decision and that should be the end of the matter. However, the amendment recognises that it is not the end of the matter. The end may well be an appeal. The limited objective of the amendment is to allow people at least to apply to the licensing authority to be allowed to remain in business, subject to whatever terms, conditions and restrictions may be imposed, until the appeal is determined. That is not an unusual power which I seek to introduce into the machinery of the Bill.

It has already been recognised in our earlier discussions that the procedures which may operate under the Bill and under the guidance which will ultimately be perfected are not necessarily perfect procedures. It may well be that there are marginal cases in which something has gone seriously wrong and where an appeal is justified and may well succeed. But it will be too late from the point of view of the licence holder. For that reason—

The Earl of Courtown

With the leave of the Committee, I did not answer the question posed by the noble Lords, Lord Meston and Lord Monson. However, I undertake to write to both of them and to discuss the detail before the next stage of the Bill.

Lord Meston

I am grateful to the Minister for that indication. It remains a curiosity which needs to be cleared up, in my submission. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Clause 1, as amended, agreed to.

Clause 2 [Licensing in Greater London]:

Baroness Anelay of St. Johns moved Amendment No. 30: Page 3, line 26, after ("situated") insert ("stating").

The noble Baroness said: I spoke to Amendment No. 30 with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

Baroness Anelay of St. Johns moved Amendment No. 31: Page 3, line 27, at end insert ("and giving reasons for his view that there is such a problem.").

The noble Baroness said: I spoke to this amendment with Amendment No. 2. I beg to move.

On Question, amendment agreed to.

Baroness Anelay of St. Johns moved Amendments Nos. 32 to 36: Page 3, line 30, after ("will") insert ("significantly"). Page 4, line 5, after ("situated") insert ("stating"). Page 4, line 6. at end insert ("and giving reasons for his view that there is such a problem."). Page 4, line 11, after ("will") insert ("significantly"). Page 4, line 32, after ("will") insert ("significantly").

On Question, amendments agreed to.

Baroness Anelay of St. Johns moved Amendment No. 37: Page 4, line 37, at end insert ("and for "the next following sub-paragraph" substitute "sub-paragraph (2) of this paragraph").

The noble Baroness said: This is a minor drafting amendment. It improves the drafting of paragraph 19(1) of Schedule 12 to the London Government Act 1963 which applies to Greater London and makes provision for appeals. The amendment simply substitutes for a reference to, "the next following sub-paragraph" a reference to "sub-paragraph (2) of this paragraph" paragraph 19. The meaning, I am assured, is unaltered. I beg to move.

On Question, amendment agreed to.

Baroness Anelay of St. Johns moved Amendment No. 38: Page 4, line 46, leave out from ("where") to end of line 3 on page 5 and insert ("a decision is made under paragraph 2A(5) or 9A(4) of this Schedule means the date on which the person in question is notified of the decision.":").

The noble Baroness said: I spoke to this amendment with Amendment No. 25. I beg to move.

On Question, amendment agreed to.

Baroness Anelay of St. Johns moved Amendment No. 39: Page 5, line 3, at end insert— ("() in sub-paragraph (2) (appeals against decision of magistrates' court), for "on an appeal under the foregoing sub-paragraph" substitute "under sub-paragraph (1) of this paragraph or under paragraph 10(4A) of this Schedule";").

The noble Baroness said: I spoke to this amendment with Amendment No. 26. I beg to move.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Baroness Anelay of St. Johns moved Amendment No. 40: After Clause 2, insert the following new clause— CONSEQUENTIAL PROVISION FOR SPECIAL HOURS CERTIFICATES (". In section 81 of the Licensing Act 1964 (revocation of special hours certificates), after subsection (1) insert— (1A) Where a special hours certificate is revoked under subsection (1) above as a consequence of a licence being revoked under—

  1. (a) paragraph 11A(2) or 12(5) of Schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982, or
  2. (b) paragraph 9A(2) or 10(4A) of Schedule 12 to the London Government Act 1963,
the certificate shall be reinstated if the licence is reinstated under paragraph 11A(4) or 17 of Schedule 1 or paragraph 9A(4) or 19 of Schedule 12."").

The noble Baroness said: I referred to this amendment when Amendment No. 27 was discussed. I beg to move.

On Question, amendment agreed to.

Clause 3 [Short title, commencement and extent]:

Baroness Anelay of St. Johns moved Amendment No. 41: Page 5, line 22, leave out ("and 2") and insert ("to (Consequential provision for special hours certificates)").

The noble Baroness said: I also spoke to this amendment when we discussed Amendment No. 27. I beg to move.

On Question, amendment agreed to.

Clause 3, as amended, agreed to.

House resumed: Bill reported with amendments.

Lord Lucas

My Lords, I beg to move that the House do now adjourn during pleasure until five minutes past eight o'clock.

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

[The Sitting was suspended from 8 to 8.5 p.m.]