Licensing Bill [H.L.]

HL Deb 17 December 2002 vol 642 cc614-42

Baroness Blackstone

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

Before I finally move that Motion, I shall respond to the question raised by the noble Baroness, Lady Buscombe, about the guidance framework. The correct framework is the one that the noble Baroness has been using, which I am glad to say is on the website. That version was also distributed at the all-party briefing meeting on 21st November and was sent to the noble Baroness by officials when the Bill was introduced. Unfortunately, a slightly earlier draft of the framework was placed in the Printed Paper Office in error. It was not significantly different, but I apologise for the fact that an incorrect version was put in the Printed Paper Office by mistake. That has now been rectified; the wrong version has been torn up and shredded, and there are now plenty of' copies of the right version in the Printed Paper Office.

Moved, That the House do now again resolve itself into Committee.—(Baroness Blackstone.)

Question, Motion agreed to.

House again in Committee on Clause 4.

Baroness Buscombe moved Amendment No. 75: Page 3, line 12, at end insert— ( ) the protection of the environment

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 80.

These are probing amendments that seek to establish why the Government do not view the protection of the environment as an appropriate issue for consideration in licensing policy. Those of us who have been familiar over the years with the ambience of an urban area, such as parts of the City of Westminster, know the problems that a proliferation of licensed premises can make for a local environment. Westminster Council's "Clean Up Soho" campaign is one example of a local authority using the various powers at its disposal to improve the environment of an area without detriment to its thriving social life. Will the Bill give local authorities any leeway in that respect? If not, is it a matter that the Government might be prepared to consider further?

The same arguments might apply to a rural area. One can imagine circumstances in which a quiet riverside scene might be considered environmentally inappropriate for some kinds of entertainment or licensed activity. Would a local authority be able to take into account the potential impact on a delicate natural environmental or an historic building, for example, when determining its policies? Will it be illegal for an authority to try to protect such vulnerable areas in that way? It would be helpful to have clarification from the Minister.

Equally—here I speak also to Amendment No. 80—can the Minister explain the rationale of the words in Clause 13(2)(d) on the protection of the environment? Amendment No. 80 would remove from paragraph (d) the provisions applying to the work of local authority officers supervising licensed premises; namely, as the paragraph states, minimising or preventing the risk of pollution of the environment". It would apply those words to the licensing objectives overall. How can the local authority officers act within those powers if those objectives are not included as part of the overall objectives of the licensing policy envisaged by the Bill?

There appears to be an inconsistency at least in including the words in paragraph (d) and resisting them in this regard. It sends mixed signals to those who will be responsible for operating under the framework of the Act. The protection of the environment is one of the key roles of any local authority and it commands the widest public support. Can the Minister explain why that overarching imperative should not come into play in the operation of policy under the Bill? I beg to move.

Lord Redesdale

This issue is of much concern to many local authorities, especially those that have lobbied Members of the Committee. However, I do not support the amendment because there is a slight difficulty in saying to what extent the polluter pays principle would be at work in this regard. The licensee and the licensed premises are often not responsible for the damage to the environment and the local area; that is caused by the patrons of the premises. Litter is inherently connected with late-night fast-food outlets. Will further provisions apply to them and the littering for which they are responsible?

Lord Avebury

My noble friend rightly refers to fast-food restaurants. That was a source of enormous nuisance in the London Borough of Westminster, which the noble Baroness mentioned. She will remember that when Councillor Simon Milton made his presentation he emphasised the enormous quantities of rubbish that are littered on streets by people coming out of fast-food restaurants.

Fortunately, that has been ameliorated by police action in closing down some of the establishments that operated until well after the closing time of pubs and clubs. Formerly, Kentucky Fried Chicken, McDonald's and so on remained open until four o'clock and people came out of drinking establishments, walked over to the fast-food outlet, got a hamburger and immediately threw the litter on the streets. As a result, the council had—and still has—to employ a number of workers who go round in the middle of the night sweeping up the streets. They have to cope with even worse pollution, from people who vomit on the streets, and even worse—I shall not mention some of the things that those workers have to clear up because it is so disgusting. That is not the sort of environment that anyone would like to live near. Fortunately, in that area there are not many residential establishments.

The assistant commissioner of the metropolitan police told us at the same meeting that that kind of environment is spreading into the suburbs. The late night culture has spread to places such as Romford, Watford, Ealing, Croydon and so on, where clubs are accompanied by fast-food establishments. When tourists arrive the following morning, council officials are still trying to clear up the mess.

The principle of the polluter pays does not apply because local authorities may well be faced with large additional costs of rectifying the burden on their environment by having to employ many additional workers late at night. Yet the licence fee, which we will turn to later no doubt, is sufficient only to cover the actual costs imposed on the council in operating that system.

So I think it would be good if we could—not perhaps in the particular way that the noble Baroness has described, but in some other manner—ensure that the council has the ability, where there are severe threats to the environment, to do something about it in its licensing policy. What I am afraid of, to be quite frank about the matter, is that it will not have that ability under the guidance to be issued.

As the noble Baroness is aware, I am really very upset about the way that the Bill is being handled. We will not know until the guidance is issued what powers the local authorities have to deal with these threats. We will have finished with it long before they come to award the licences and before they have to consider the policies we are talking about today. So, I am sorry, but I think that whatever we say today, the powers of the local authorities are going to be so limited—and this is what they have expressed to us in their complaints—that we shall not be able to protect the environment, not just at the centre of London but in many of our provincial towns, which are now under grave threat.

8.45 p.m.

Lord Brooke of Sutton Mandeville

I rise to support my noble friend on the Front Bench and also to allude to the speech just made by the noble Lord, Lord Avebury. In terms of the costs which Westminster expects, in addition to additional administration, inspection and enforcement costs of between £1.6 million and £1.2 million, it estimates that the additional cost of street cleansing to cope with 24-hour opening will be in the region of £1.2 million. Extra noise-abatement costs are estimated to be £500,000.

I put down these markers at this stage because the Government Front Bench will recall that there have been occasions in the past when Westminster has had money taken away from it in the context of people who come into Westminster by day. A large number of the people who come into Soho and the West End stress area during the course of the night are not Westminster residents.

Lord Davies of Oldham

I have listened carefully to the debate on the amendments which seek to alter the licensing objectives which lie at the heart of the Bill. The objectives are designed to ensure that everyone involved in the licensing regime is focused on the common goals that are essential to the well-being of our communities in relation to licensable activities. They are also to ensure that all regulations restricting the freedom of the industry are genuinely necessary and do not duplicate other regulatory regimes.

The noble Baroness, Lady Buscombe, made reference to issues in Clause 13 occurring late in the Bill. That officer is concerned with noise issues. The noble Baroness will recognise that the officers that are identified are concerned with a number of general issues which are not directly related to the licensable activities.

The four licensing objectives were developed after extensive and detailed consultations with all stakeholders and a lengthy review of the existing law conducted between 1998 and 1999. The result of that consultation is a clear focus on the prevention of disorder and disturbance, the assurance of public safety in places where people gather together for leisure purposes, and the protection of children from physical, moral and psychological harm. The effect of these amendments would be to extend those groups of objectives.

I turn to the noxious issue of what happens to the wrappings from fast-food outlets and so on. We all recognise entirely the validity of what has been said by the noble Lords, Lord Redesdale and Lord Avebury, about the extent of that nuisance. I also respect the point made by the noble Lord, Lord Brooke, that there is a cost involved in clearing up this vast amount of litter.

It is difficult to suggest that the fast-food licensee is responsible for the litter cast away after the food has been consumed. First, the litter is frequently some distance away from the premises; secondly, the person committing the offence is the person who cast the litter. It is against them that action should and is taken in the best circumstances.

No doubt we need to tighten up our regimes in that regard. We know the obligations laid upon the police. But we are all concerned to improve the control of litter in our society. From time to time campaigns are run. I can remember a decade ago, in St James's Park, even the Prime Minister at that time led a campaign against litter. But it is unfair, within the framework of this Bill, to make the owner of the fast-food outlet responsible for the litter cast by people who have consumed his food. They are fully responsible for their own actions.

We should restrict the freedom of persons engaged in legitimate business only to the extent it is absolutely necessary in the wider community interest. Therefore we must be careful only to frame objectives that licensing can properly aim to achieve. These amendments would create new licensing objectives of protection of the environment and minimising or preventing the pollution of the environment.

Of course protection of the environment is an important issue. But it does not come within the scope of this Bill. The terms proposed would open the way for inappropriate and disproportionate conditions. They would overlap with other regimes in place which already impact on business. Environmental protection controls provide extensively for punitive action against businesses which transgress those rules. The intention behind the amendments is already provided for in a balanced way by the Bill as drafted. A range of expert bodies, including those authorities responsible for health and safety and environmental health, including the police and the fire authority, will have a say in all applications and the call for a review of existing licences.

I share the concerns expressed by Members of the Committee in this debate. We all recognise that what has been rightly identified is an issue to which we need to address our resources with care. However, the Bill is not the vehicle for environmental protection of that kind. I recognise that the noble Baroness feels that the amendment would enable us to clarify the Government's position. I hope I have succeeded sufficiently to enable her to withdraw the amendment.

Lord Brooke of Sutton Mandeville

I do not seek in any way to prevent the Minister from sitting down. However, he explained that the fast-food outlet does not have a responsibility for litter and that that responsibility falls on the person who distributes the litter. Let me say, so that it is on the record, that in the days when I lived adjacent to Westminster Cathedral, McDonald's were impeccable in the way they cleared up the litter over the whole of the Westminster Cathedral piazza.

Baroness Buscombe

I thank the Minister fir his response. I wish to add to what my noble friend Lord Brooke said in relation to the activities of McDonald's. As many of us are aware, they are not alone. A number of organisations in the industry go out of their way to try to minimise the impact within the locality of their various premises.

That said, we felt it worthwhile raising this issue for clarification. I shall read in Hansard what the Minister said in relation to the licensing objectives. I am still a little uncertain but I do not want to detain the Committee too long on the matter tonight. We were not seeking to alter the objectives; we sought to add to them. We felt that it was a matter of considerable concern. As I said in my opening statement about the amendments, this area commands the widest public support. We were particularly interested that the risk of pollution of the environment was not one of the objectives, although it is referred to, as the Minister and I said, in Clause 13(4)(d), which refers to, the local authority by which statutory functions are exercisable in any area in which the premises are situated in relation to minimising or preventing the risk of pollution of the environment or of harm to human health". We feel that some of the references are somewhat thrown into the Bill. On the one hand, they are not objectives and, on the other hand, in a sense, they are. That is why I want to read carefully what the Minister said. It is an important issue, but I do not wish to detain the Committee further. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 76: Page 3, line 12, at end insert— () the protection of public health

The noble Baroness said: In moving Amendment No. 76, I shall speak also to Amendment No. 79.

The amendments explore the limits of what the Government think that licensing objectives should be. We have a later amendment, which, we hope, we will be able to debate separately, when we have explored more of the shape of the Bill as a whole in Committee. It suggests that we should have an annual report on alcohol and health that would enable us to monitor and control the effect of the changes in the law. For now, I want just to explore the principle.

The Government are quick on the draw when it comes to telling us what is good and bad for us. We cannot open a newspaper without getting a lecture on something or other. Whether it is driving, smoking, children's eating habits or fireworks, somewhere there will be a Minister lecturing us about it, a government leaflet preaching about it, a government regulation forbidding it or a government supporter itching to pass a law about it. It sometimes seems that, in this country, we cannot move for government health advice. The advice is not always clear: need I mention sex? It is not always consistent: need I mention cannabis? But it is there.

Then, we turn to the policy on licensing. That policy will set the framework for a generation for where and when people can drink. Where is health in the equation? I ask the Minister to answer some simple, straight questions. What are the public health advantages of 24-hour drinking? Do the Government have a view? If so, where does it inform policy? If not, where were the Health Ministers while the policy was being framed?

The Bill concedes that alcohol can be harmful. It is implicit—though not stated—in the concerns set out in the clause about disorder, public safety and public nuisance. It is explicit elsewhere. In Clause 13(4)(d), it is recognised that one of the roles of the officer of a local authority responsible for licensed premises is the prevention of "harm to human health". If it is a legitimate role for a local authority officer to prevent harm to human health in watching over licensed premises, why is that dimension not recognised—and, by implication, not permitted to be recognised—in the licensing objectives? It would be helpful for our future debates if the Minister could explain that to the Committee and, in so doing, give some assessment of the harm to human health that the Bill envisages that local authority officers—but not licensing policy—will prevent. It is all the more puzzling, given the wording of subsection (2)(d), which refers to, the protection of children from harm".

We debated that with regard to Amendment No. 74, but does the harm that children may suffer include harm to health?

What is the Government's attitude to the consumption of alcohol in quantities, something that might be facilitated by 24-hour drinking? In what quantities and in what conditions could it be harmful? If it could be harmful, why do the objectives of licensing policy not include, even at the fringes of the policy, the prevention of harm? I hope that we will not see another government illogicality, combining the opening-up of unrestricted drinking hours with controls or bans on the advertising of drink. Do the Government believe that the wider availability of alcohol around the clock affects in any way the case for controlling advertising? I am not advocating such controls; I am simply inquiring into the Government's position. Imagine a situation where a street or area becomes, as some people fear may happen under the Bill, a place where all-night drinkers congregate around the clock. Some streets in London are in that category as a result of the Government's cannabis policy areas for drug use.

Is there no dimension here of risk or danger of harm to health? I am interested in the Government's response. Are they prepared to think further about those issues? I invite them to consider bringing into the Bill, in relation to licensing objectives, the same consideration for the prevention of harm to human health as appears elsewhere. I beg to move.

9 p.m.

Lord Davies of Oldham

I believe that the noble Baroness started with an unfortunate metaphor. She referred to this Government being quick on the draw. It seems an unfortunate concept to suggest that seeking to improve aspects of public well-being should be done at the point of a gun. I say that against the background of the previous two Opposition amendments that would have increased regulation and control, which we sought to resist. Therefore, if anyone has been pointing a gun in the past half hour, I would maintain that it is the mover of previous amendments. However, let that be.

I emphasise the obvious fact. The amendments seek to add to the four licensing objectives which I explained in response to earlier debate, the promotion of public health and the prevention of harm to human health. Public health is an important issue. I understand the reasoning behind the amendments. However, they are no more justified within the framework of this Bill than protection of the environment. The wider area of the protection of public health is not within the scope of the Bill.

Having said that, certain of the Bill's measures should have a positive effect on public health. Fixed closing times or permitted hours have been associated with hinge drinking as people try to consume large quantities of alcohol against the clock in an attempt to heat last orders.

If we want a reference where health has improved, we have only to look at the New Zealand and Australian experience—which I admit is not quite the Nordic example we were discussing earlier. However, the features of Australian and New Zealand culture are, for obvious reasons, more closely related to our own. The famous "six o'clock swill" occurred because pubs and bars closed at such a ridiculously early hour that people who had been hard at work all day had less than one hour in which to consume as much alcohol as possible before their time was up. The result was appalling levels of binge drinking and drunkenness generated by artificially early fixed closing times. The issues declined in salience once the licensing regime was relaxed.

The Bill will do away with artificially early fixed closing times. However, that is just one piece of the jigsaw of evidence. Following the last major liberalisation of licensing law in this country—all-day opening in 1988–89—alcohol consumption fell for several years running.

The Government recognise the motive behind the amendment. We share with the noble Baroness, Lady Buscombe, the fact that alcohol can do harm to health. That is why we have set up the national alcohol harm reduction strategy. The project has close links with my department, but the lead department on this strategy—the noble Baroness made reference to the question of where does the Department of Health fit—is the Department of Health.

I reiterate that the licensing objectives are designed to ensure that everyone involved in licensing concentrates on clearly focused and understandable common goals essential to the well-being of our communities and worked out in negotiations with all parties to the legislation. However, they must be realistic and must lead to terms, conditions and restrictions on licences which can be sensibly achieved by any licensee. That is why we no more believe that this amendment fits within the framework of the Bill than we did its immediate predecessor, with which it has a close parallel.

I hope that the noble Baroness will once again feel that I have explained the Government's position sufficiently for her to be able to withdraw the amendment.

Lord Chan

Where within the licensing authority will there be an emphasis on public health? Apart from the issue of prolonged hours for drinking alcohol, other issues arise; for instance, the temptation to forget about cleaning the premises. Floors and toilets have to be cleaned and, more importantly, beer lines must be sterilised. There will be the danger of the licensee deciding to delay that cleaning because of his concern to please his clients who are there for longer periods.

There will also be prolonged exposure to a smoke-filled environment and I wonder whether that has been considered. Furthermore, members of staff must also work additional hours. Surely those issues must be highlighted within the Bill.

Lord Avebury

I agree with the noble Lord, Lord Chan, that those issues should be highlighted within the Bill. We are in danger of losing sight of the overwhelming tide of alcohol that is sweeping through the country. According to the latest figures, alcohol-related illness is costing the National Health Service £2.9 billion per annum.

The Minister is out of date when he ascribes the harm to binge drinking immediately before the standard closing time of eleven o'clock. I do not know where he has been for the past few years, but patterns of drinking have changed. Pubs may close at eleven o'clock, but other establishments continue until two, three or four in the morning.

I do not know whether the Minister saw the article in the Guardian last week announcing: New wave of sophisticated alcopops fuels teenage binge drinking", or whether he read the article immediately below that stating: Out on the town in Romford where 16 year-olds have 10 bottles a night". That describes drinking patterns. One young girl aged 16 said that she goes out to the pubs and that after they close she goes into clubs. There she consumes, as the headline says, 10 bottles or even more. Some people drink 15 bottles between 9 p.m. and 3 a.m. That is not the kind of binge drinking with which we were familiar a few years ago when people swallowed large quantities of alcohol immediately before closing time.

That pattern has disappeared from the drinking life of this country. The increasing consumption of alcohol is already being fuelled by establishments which open late at night. The noble Lord and his Government are proposing to extend that culture all over the country and to allow any establishment to open for as many hours as it thinks it needs to sell more alcohol. That is the only point of the exercise; establishments would not stay open all night if they were not going to increase their sales. As sales mount, more harm will be done to the nation's health. There is no argument whatever that the costs to this country in terms of accidents and ill health due to alcohol will increase according to the amount of alcohol that is drunk. In ignoring health issues we are setting off a time bomb. Alcohol-related harm is already ripping into our national life, causing immense harm particularly to young people.

I appeal to the noble Lord to read the document which was recently published by the Department of Health—a survey carried out by the National Centre for Social Research and the National Foundation for Educational Research, Drug use, smoking and drinking among young people in 2001. I think that it would benefit Ministers who are dealing with this Bill to look at that report. They always speak about joined-up government, but every time we ask about the harm that is caused by alcohol the Minister says that it has nothing to do with licensing. I do not accept that answer and I appeal to the Government to think again.

Lord Hodgson of Astley Abbotts

It is not for me to come to the aid of the Government Front Bench, but there are two points which are worth making. The first is that the consumption of alcopops has declined quite radically since the Government introduced excise changes. Consumption has dropped by 18 per cent in the past 12 months. I am not saying that there is not a problem but that particular aspect has been tackled.

The second point is that market forces drive good licensees of pubs to have a neat, clean, well-organised place. They want the car park to look nice; they want the environment to look nice. If it does not look nice, the customers will not come again. I accept the points that are being made, but I think that we must also see that there is an economic rationale within this for publicans to ensure that their clientele are well behaved and that the pub is clean and well organised, because that will bring people back again. They are in a trade where they want people to return and to use the public house day after day, week after week.

Lord Beaumont of Whitley

I think that is true but, if you travel around the country as I do, visiting various towns on political errands of one kind or another, you will find that in almost every town there are two or three large pubs which are solid drinking places for young people, from about six o'clock on into the night. Those are the pubs which have to encourage people to stay on in order to drink more.

The noble Lord, Lord Hodgson of Astley Abbots, is of course right in saying that they do their best to see that their car parks are tidy, that the place is not full of vomit and that it is reasonably well controlled. But these are places to which people become accustomed to going. They know that this is a place you go to on a Thursday, Friday, Saturday and Sunday night in any provincial town, and you drink as much as you possibly can.

Lord Davies of Oldham

We have had a clear illustration of how easy it is to identify a well-known issue with regard to public health, to bring in a whole range of arguments which are somewhat extraneous to this measure, and then to indicate that somehow this measure ought to be expanded to cover all of these aspects.

Let us take the most obvious things. I know the reputation of the noble Lord, Lord Chan, and I very much respect his contribution to issues of public health. But this is not the Bill in which we constrain the hours of work of the people who work in licensed premises. We have legislation which deals with hours of work. Employment legislation is a key feature of the Government's record, of which they are rightly proud. This measure, however, does not include the issue of working hours. Nor is there any question of a licence being granted or renewed to a licensee who is not capable of keeping his equipment clean enough to avoid straightforward damage to public health—which would soon become apparent, it would seem to me, if he were guilty of fouling the pipes to the extent suggested. Of course it is an important consideration, but only within the obvious general obligation of a licensee to provide a healthy beverage—that is, a non-poisonous beverage—to the consumer.

I regard the issue of alcopops as somewhat extraneous. The noble Lord, Lord Avebury, rightly identified the fact that there had been a significant rise in under-age drinking which needed to be addressed, and that alcopops formed a part of that cult. The noble Lord, Lord Hodgson, came to my rescue like a knight in shining armour—for which I am duly grateful—and I can merely testify to the accuracy of what the noble Lord said: that is, that these issues have been addressed. The Portman Group has established agreed packaging for alcopops and the Government have taken steps to encourage the development of a code of practice to help to control the position.

Nothing needs to be added to the Bill in terms of constraints on under-age drinking. We had that debate earlier in regard to identity cards. Of course, identity cards would not necessarily solve the problem of alcopops because other people could purchase them for under-age drinkers in all kinds of outlets. The problem must be tackled on the basis of the way in which these alcoholic beverages are presented to the public. Strenuous work has been carried out to ensure that some of the worst features of that problem have been brought under control to a degree.

I recognise that the amendment introduces the issue of public health. This is important in regard to alcohol because we know that excessive consumption of alcohol is dangerous to humankind. We also know that alcohol is one of the joys of the community. The noble Lord, Lord Avebury, may ask where I do my drinking; I would ask where he has been if he does not appreciate the fact that alcohol, drunk in restrained amounts in ideal circumstances, is one of the great joys of our society and civilization. What are we more proud of in Britain than the concept of the British pub?

Within that framework, part of the representations on this amendment appear to be fundamental Second Reading points on what is wrong with anything that extends licensing hours. We have argued the case with great strength, both on Second Reading and when it has cropped up in these amendments, and on that basis I hope that we can move on and that the amendment will be withdrawn.

Baroness Buscombe

I thank the Minister for his response and all noble Lords who have taken part in the debate. It is right that these issues should be probed. The noble Lord, Lord Chan, came forward with additional thoughts in relation to whether or not the beer lines will be sterilised if pubs are on the go 24 hours a day. These are important issues where publicans are under pressure—notwithstanding what my noble friend Lord Hodgson said—and are bound to impact on the day-to-day workings of licensed premises. Indeed, they will become more apparent given the pressures involved in the prolonged hours of work that I suspect will impact on those with premises licences and individual personal licences as a result of the liberalising laws in the Bill.

It is important to reiterate that one of the reasons for probing this issue is that we on this side of the Committee do not seek to regulate, to clamp down, to minimise and control—far from it—but, as I said in opening the debate, we are somewhat intrigued by the fact that the Government lecture us on many fronts in relation to what is good for us and for our health. Even in a recent report on the future of sport, which 'was leaked from 10 Downing Street, it seems that sport is no longer about having fun, team playing, enjoying yourself; it is about health. We do not disagree with that. However, we are saying that the entire tenet, the drive, of the Government at the moment seems to be about how we look after ourselves and our health. That is not a bad idea, but it seems that we should not be debating the matter now.

I make no apology for raising this important issue. It is also referred to in Clause 13 of the Bill. We believe that if matters of public health and the protection of the environment were on the face of the Bill, the licensing objectives would benefit the local authorities that will have to work with the Bill, when enacted.

On that basis, we have had a good debate and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 77 to 80 not moved.]

The Deputy Chairman of Committees (Lord Geddes)

Before calling Amendment No. 81, I must advise the Committee that if it is agreed to, I cannot call Amendments Nos. 82 to 89 inclusive due to preemption.

Baroness Buscombe moved Amendment No. 81: Page 3, line 13, leave out subsection (3).

The noble Baroness said: In speaking to this amendment, I shall speak also to Amendments Nos. 82, 83 and 84.

These amendments relate to the duty imposed by Clause 4(3) on a licensing authority to "have regard to" its own licensing statement and the Secretary of State's guidance when carrying out its functions. Amendments Nos. 81, 83 and 84 are probing amendments that would delete the current wording of the Bill. Amendment No. 82 would replace the words "have regard to" with "take into account".

I have tabled these amendments to probe the exact nature of the duties that will be imposed on local authorities under Clause 4. The Committee will have noticed that, although the term "have regard to" is used in subsection (3) in relation to following the licensing statement and the Secretary of State's guidance, subsection (1) uses the term "with a view to promoting". It would have been open to the Government to say in subsection (1), "A licensing authority must have regard to the licensing objectives when carrying out its functions under this Act", rat her than using the term "with a view to promoting" in the Bill.

I hope that the Minister will be able to explain to the Committee why the Government have chosen to use what in my submission is the slightly weaker wording, imposing a less onerous duty, of "with a view to promoting" in subsection (1), which deals with the statutory licensing objectives, but have chosen the wording "have regard to" in the context of subsection (3), which deals with a duty to follow the licensing statement and the Secretary of State's guidance.

I therefore take it from the wording of the Bill that if in the judgment of a licensing authority either the licensing statement or the national guidance conflict with the licensing objectives in subsection (2), it will have to apply the statement and the guidance over the objectives, given the difference between the terms "with a view to promoting" and "having regard to". Perhaps the Minister will comment on that when she comes to the Dispatch Box, and also on what a licensing authority will have to do if it considers that its own licensing statement and the Secretary of State's national guidance conflict. Which will be followed?

The Committee will recall that during the final stages of the passage of the Nationality, Asylum and Immigration Bill in the previous Session your Lordships' House agreed, after a Division, to an amendment in the name of my noble friend Lady Anelay of St Johns. That amendment would have placed a duty on the Secretary of State—that is, the Home Secretary—to "have regard to" the needs of asylum seekers when choosing sites for new accommodation centres.

Members of the Committee—not least my noble friend Lord Brooke of Sutton Mandeville, who took a great interest in the provisions of that Bill—will also recall that the noble Lord, Lord Filkin, on consideration of Commons amendments and reasons, said that the wording of that amendment, would open up an increased probability of frequent judicial review".—[Official Report, 6/11/02; col.782]

He said that it would open us up to delay and judicial review. I therefore invite the Minister to comment on the use of the words "have regard to" in Clause 4(3).

I ought to say that there are many instances in legislation of duties being imposed on public authorities to "have regard to" certain matters when making decisions. But I thought that in the light of the recent comments by the noble Lord, Lord Filkin, from the Government Front Bench I should give the noble Baroness an opportunity to tell the Committee something of the Government's thinking on the drafting of Clause 4 and the potential for judicial review of licensing authorities. I beg to move.

Lord Hodgson of Astley Abbotts

This is an important set of amendments, relating as it does to Clause 177 and bringing the clause into play in terms of the guidance—which could of greater or lesser importance depending on what is included. The framework guidance which has been made available to us runs to 11 pages and 55 paragraphs. Within that there is either an opportunity for extreme centralisation or alternatively the emergence of local democracy and decentralisation depending on what emphasis is placed on the document.

The document contains a great deal that is unclear. It uses words such as "proportionality"—the pages are not numbered—in connection with premises licences. I am not quite sure what "proportionality" is in relation to a premises licence. Other aspects of the premises licence raise questions. For example, there is a reference to large venues of 1,500 people. It is not clear to me whether 1,500 is a number that will be set in stone for ever or whether it is capable of being altered.

Many personal licence holders operating under a premises licence granted under the terms of the Bill—if capacity is applied to their public houses, and if different levels of capacity are applied to different bars—could have extreme difficulty in managing the flow of people between the different parts of the licensed premises.

My noble friend has raised an important point as to exactly where and how the guidance can be fitted in. It is already lengthy and capable of being extremely prohibitive to local conditions, or alternatively very empowering in terms of local democracy. We need to spend some time considering how this will operate and whether it is not actually the guts of the Bill by proxy in Clause 177.

Lord Renton of Mount Harry

I strongly support what my noble friend has just said and the remarks of my noble friend on the Front Bench. I find a particular sympathy with Amendment No. 83. It would be helpful if in replying to this brief debate the Minister could tell us why precisely this guidance from the Secretary of State is thought to be necessary. Surely the whole essence of having licensing authorities is that they know the local conditions best. It is perfectly understandable if in one area late-night activity is not thought to be a problem whereas in another it can be very objectionable indeed. If licensing authorities are to have a purpose, surely that kind of decision must be left to them.

What worries me about this is that once again it seems to be a case of "the Minister in Whitehall knows best" and, if necessary, he is going to promulgate and licensing authorities throughout the country are going to have to listen.

Perhaps I may quote a somewhat similar example from my experience as chairman of the Sussex Downs Conservation Board, an interest that I have declared frequently in this Chamber. As many will know, the Government are anxious for the South Downs to be turned into a national park. One of the reasons why there is considerable hesitancy about this is the feeling that in the end the Minister will decide exactly how a national park is to be run, he will appoint most of the members and so forth, rather than trust in the local authorities, the local people who know the conditions, to make the judgments.

Particularly in the case of licensing and the freeing up of the licensing laws—of which I approve—it is worrying if the licensing authorities feel, with reason, that there may be an edict from the centre that does not take account of local conditions. My noble friend on the Front Bench said that Amendment No. 83 was a probing one. It is jolly specific. I wish to know why it is thought necessary that the Secretary of State can administer the guidance at all. Could that not be seen as a threat to the ability of local licensing authorities to make their own difficult decisions about what is appropriate in their own areas?

9.30 p.m.

Lord Brooke of Sutton Mandeville

This grouping is an a la carte menu of amendments directed, broadly speaking, to the same point and purpose. My noble friend Lord Renton of Mount Harry opted for Amendment No. 83. I opt for Amendment No. 84, which was tabled jointly by the Official Opposition and the Liberal Democrats. Having heard the speech of my noble friend Lord Renton of Mount Harry. I thought that he, too, might be supporting Amendment No. 84. I may have misunderstood his speech.

Amendment No. 84 proposes the deletion of Clause 4(3)(b). If, as the Bill implies at present, a licensing authority must have regard to guidance issued by the Secretary of State in the exercise of all its licensing functions, local accountability will be eroded to an unacceptable extent. In addition, the legislation would leave unclear the respective roles of the licensing authority's statement of licensing policy, on the one hand, and the Secretary of State's guidance, on the other.

Assuming that Clause 177 stands part of the Bill, licensing authorities will be required to have regard to the Secretary of State's guidance when formulating policy. But, having done so, it seems to me that the statement of licensing policy should guide the determination of licensing applications. If a local authority did not have regard to the Secretary of State's guidance, it could be subject to judicial review in the manner to which my noble friend Lady Buscombe referred. That course of action, if it were followed, would contribute to the Bill's aim of ensuring local democratic decision-making in determining licence applications.

The test of the proposition is that, alternatively, if the local authority's licensing policy is at variance with the Secretary of State's guidance or vice versa, the magistrates at appeal level will have to determine both the policy and the facts of the individual case. That cannot he right if the principle of democratic accountability is, in any genuine sense, to be maintained as, I assume, the Government still intend—if I may give them the benefit of the doubt.

Lord Renton of Mount Harry

My noble friend is absolutely right. I was incorrect in saying that I supported Amendment No. 83. I was speaking to Amendment No. 84.

Lord Brooke of Sutton Mandeville

Rarely do I have the effect of changing the speech of any of my colleagues on these Benches. I am extremely grateful to my noble friend for telling me that I did on this occasion.

Lord Redesdale

I shall speak briefly. I thought that Amendment No. 84, to which my name is attached, would be grouped with the next set of amendments. I will therefore speak to it with the next group.

The Lord Bishop of Portsmouth

I hope very much that the Government will consider these amendments carefully, and that they provide the type of safeguards discussed in the context of amendments to previous legislation. I hope that they will be pursued properly.

Lord McIntosh of Haringey

I shall try to set out the hierarchy of responsibilities in Clauses 4, 5 and 177, on which there is confusion—no doubt, that is the Government's fault, as is everything else. The noble Baroness, Lady Buscombe, queried the phrase in Clause 4, "with a view to promoting". Clause 4 states: A licensing authority must carry out its functions … with a view to promoting the licensing objectives". That means that it has no choice. It is not a weak provision; it is a strong requirement. We have now passed the four licensing objectives. The committee has approved them as the bedrock on which the activities of licensing authorities will be based.

Clause 5 relates to the statement of licensing policy, which is enormously important. However, it is produced by the individual licensing authority. It sets out over a three-year period—the detail of which we shall come to shortly—the way in which the licensing authority interprets the four licensing objectives in the context of its own area. It has to do so with a degree of transparency that is set out in detail in the clause. It also has to consult; it has to publish; it has to argue; and it has to be prepared to listen to representations. Generally speaking this is, if you like, the local responsibility element of the way of which licensing policy is delivered.

Finally, there is Clause 177, which deals with guidance. Everyone has read the Framework for Guidance. I should remind the Committee that guidance is not legislation; it is a document produced by the Secretary of State that is designed to secure that no unnecessary conflicts exist between the licensing policies set out by different licensing authorities. It also sets out the kind of issues that licensing authorities must consider when they are producing such a policy. The phrase for that is quite deliberately "have regard to"; in other words, when we are talking about guidance, which is neither legislation nor an instruction, the words "have regard to" are appropriate because the authority retains an ultimate discretion to depart from the guidance.

If an authority departs from the guidance, it has a public duty to show that it has had regard to the guidance—that is to say, that it has taken it seriously and used it in the process of formulating its objectives. Those are the three levels, as it were, through which we arrive at the basis upon which licensing authorities take individual decisions.

We should now look at the amendments before the Committee. They work in two opposite directions, which is perhaps a feature of the grouping rather than anything else. Amendments Nos. 81 and 83 would remove the obligation for a licensing authority to "have regard to" its own licensing statement, which has been determined and published under Clause 5. Amendment No. 84 would remove the obligation on a licensing authority to have regard to the guidance issued by the Secretary of State; in other words, if you take the two provisions together as you would with Amendment No. 81, or if you take them separately as you would with Amendments Nos. 83 and 84, the licensing authority is left in limbo. A licensing authority would not have to pay any attention to its own statement, and it would not have to pay any attention to the guidance issued by the Secretary of State.

However, Amendment No. 82 works in completely the opposite direction. It says that a licensing authority should "take into account" both provisions, rather than "have regard to" them. The Bill provides flexibility. However, the requirement to "take into account" would place a stronger obligation on licensing authorities to take on board all the relevant sections of the guidance and of licensing policies, and would leave them open to challenge if they failed to do so. The requirement to "have regard to" more fully reflects the fact that there will be certain circumstances in which licensing authorities will have reason to depart from the guidance.

Lord Brooke of Sutton Mandeville

As the Minister was making his response to this grouping, I turned to Clause 177 of the Bill to look at the nature of the Secretary of State's guidance, which 'will be, guidance to licensing authorities on the discharge of their functions under this Act". Is the Minister saying that they would not be subject to judicial review if they went ahead and paid no attention to Clause 177 even though the words "have regard to" had been removed from the Bill by Amendment No. 84? If he is not saying that, is he not putting the local authority in the position that it has to keep altering its licensing policy in the light of any future guidance?

Lord McIntosh of Haringey

On its own, Amendment No. 84 removes the obligation on the licensing authority to "have regard to" any guidance issued by the Secretary of State. In other words, by agreeing to the amendment, one is doing as good as voting against Clause 177 stand part. There is no point in having guidance if no one has an obligation to have regard to it. Is that the question I was asked?

Lord Brooke of Sutton Mandeville

That is the question I was asking. However, on the Minister's interpretation, which I acknowledge from the text, would he then oblige the local authority to keep changing its licensing policy in the light of any new guidance? I am saying that the local authority could have regard to Clause 177 when it set out its licensing policy in the first instance.

Lord McIntosh of Haringey

The local authority does not have to change it every single time; it just has to show that it has had regard to it. The guidance may change and the licensing authority may say, "Yes, we thought about that, but it does not apply to us and we are not going to make any change to our statement under Clause 5".

Lord Hodgson of Astley Abbotts

The issue of large capacity venues has caused some concern. Could a licensing authority say, "We have had regard to the guidance, but we don't want 1,500 as the limit in our area; we want 500". Could it do that, or must it be 1,500 or above? It is the smaller capacity issues that will be very difficult to enforce.

Lord McIntosh of Haringey

As long as they have thought about it, and as long as they have read the guidance and paid attention to it, yes, of course, they could change the 1,500—they could change it to 500, or they could change it to 5,000 if they wanted to. My noble friend Lady Blackstone will speak more about the guidance in speaking to the next group, so I shall not go into it in detail. However, the framework which Members of the Committee have seen is not the guidance itself; the framework was provided to inform debate on Clause 177. The guidance will take account of the debates in this House as well as all the other representations made on it. The obligation on the local authority is to "have regard to" the guidance. If it reads the guidance very carefully, thinks about it and says, "1,500 is not the appropriate number for us", it is within its powers to do so.

It is a hierarchy of obligations. The licensing objectives, in Clause 4, are common for all local authorities and are obligatory on all local authorities. The statement of licensing policy, in Clause 5, is designed to take account of local circumstances and is produced by licensing authorities themselves. The guidance in Clause 177 is designed to provide help for local authorities in producing consistency between licensing authorities and to give guidance on what should be in licensing policies. Those are the three elements. All of these amendments would cause damage to the relationship between those elements.

Lord Renton of Mount Harry

The noble Lord is understandably trying to play down the importance of guidance. Nevertheless, what real reason does he have to do that? Earlier, I quoted the example of national parks and areas of outstanding natural beauty; PPGs—planning policy guidance—are issued to local authorities about their planning decisions in that regard. If they do not follow that guidance, it is very likely that an inspector and an inquiry would follow, and that very serious questions would be asked about why the PPG issued by the Environment Secretary had not been followed.

Does not that go to the heart of the problem? What is guidance? It is just a tilt in the right direction and if the licensing authority does not want to follow it, so be it. But certainly as regards planning guidance issued by the Secretary of State for the Environment, that is not the case. Local planning committees are certainly expected to follow that planning guidance.

9.45 p.m.

Lord McIntosh of Haringey

I am not trying to play down the matter. I am simply saying that, having had regard to the guidance—in other words, having considered it properly—the licensing authority can reach a different conclusion which is appropriate to its circumstances. That recognises the differences between, for example, a town centre and a rural area.

I do not deny or confirm anything that the noble Lord, Lord Renton of Mount Harry, says about planning guidance. I do not think that we should draw any conclusions from guidance in other legislation. I refer to what will happen in the circumstances we are discussing. There is a balance here of common objectives agreed by everyone and understood by licence applicants, local residents, the police and local authorities together with a degree of local autonomy providing for special circumstances whether in Sutton town centre or Muddlecombe-under-Slosh. That is provided for in Clause 5. There is also the guiding hand of the Secretary of State in the sense that I have described it. That seems to me a rational way of dealing with devolution and special circumstances but with a necessary core of consistency.

Lord Avebury

I hope that the Minister can explain a matter to me. He referred to paragraph 41 of the framework guidance which refers to the situation in premises which have a capacity exceeding 1,500. In designing their policies how can local authorities ever specify what is to be done in these larger premises if no one can ever acquire the experience that is necessary to manage them? If they stick rigidly to the recommendation in paragraph 41, the licence would have to lay down that the individual responsible for day-to-day management must have had a certain level of experience of controlling similar venues. So how does anyone acquire the experience that enables him to manage such large premises when he cannot be appointed to them even provisionally within the terms of the advice that the Secretary of State will lay down?

Lord McIntosh of Haringey

I shall not embark on a detailed defence of the framework guidance. As I said, the matter of how guidance and draft guidance will be made available will be explained by the noble Baroness, Lady Blackstone, when she discusses the next group of amendments. Of course, questions remain with regard to paragraph 41 of the guidance. There are parts that legislation cannot reach. However, guidance can be changed to suit changing circumstances. If we sought to legislate in either primary or secondary legislation to cover all the eventualities that might arise in negotiations between the licensing authority and applicants, we would be here until midnight for many months. We shall be here until close to that time as it is. We are in danger of going much too far.

Baroness Buscombe

I thank the Minister for his response. We are in danger of being here rather a long time as we are desperately seeking clarity. On the one hand, I am extremely grateful to the Minister because my question has been answered. My question was: what w i11 a licensing authority do when it has to consider its own licensing statement and national guidance issued by the Secretary of State and when there is conflict? The Minister has made it clear that the local authority will retain the ultimate authority to depart from the guidance. In turn, I question why that is not clearly stated in the Bill. As I said in my opening remarks, it is unclear who takes precedence.

Lord McIntosh of Haringey

That is exactly what "have regard to" means; that is what it means in legislation, and has done for many years. I can have a learned letter written to the noble Baroness, Lady Buscombe, to give her precedents. Her interpretation is exactly right, and that is why we use the words "have regard to" rather than "take account of".

Baroness Buscombe

I thank the Minister, but he may remember that I referred to something that his noble friend Lord Filkin said. The noble Lord, Lord Filkin, suggested in relation to the Nationality, Immigration and Asylum Bill that the wording "having regard to" would, open up an increased probability of frequent judicial review".—]Official Report, 6/11/02; col. 782.] He also said that it would cause delay.

I believe that we are right to table these probing amendments. When developing our thoughts and arguments in relation to the amendments, we were of the view that "have regard to" carries more instruction than "take into account". The Minister sees it the other way, and I am grateful for his clarity.

The provision will, however, create a sense of inconsistency at local level. As I know from my own experience as a district councillor on a planning committee, like it or not the committee was very much subject to the instructions of the planning guidance issued by the Secretary of State. My noble friend Lord Renton of Mount Harry made a similar point. Officials and elected members of local government will be given much more of a free hand with this Bill. but they will have to stick to what is customary at local level in following national guidance.

Having said that, I am grateful to the Minister for his response. However, I ask him to think carefully about the possibility of introducing an amendment on Report to make it clear in the Bill that the ultimate authority will remain with the local authority to depart from the guidance. In that way, people will know exactly where they are and will not have to go fishing in Hansard for the answers. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 82 to 84 not moved.]

Baroness Buscombe moved Amendment No. 85: Page 3, line 16, leave out "guidance" and insert "regulations

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 91 and the Question whether Clause 177 shall stand part of the Bill.

I am concerned with the national guidance as detailed in Clause 177. In the Explanatory Notes, the guidance gets a mere two sentences of explanation. We are told that: The Bill provides that licensing authorities must have regard to guidance issued by the Secretary of State in formulating their framework policy documents and in discharging their other functions under the Bill".

The Bill seeks to streamline the current variety of licences under one licensing system. The task is large and the attempt is admirable. I concede the need for some of the detail of the functions of licensing committees to be dealt with in secondary legislation. We have limited time on the Floor of your Lordships' House and in the other place, which prevents us from having a debate on every function, definition and specification. However, a glance at the framework guidance—which was issued after much delay—has left many in this place, and many in local authorities, the police and industry, fearful of the Government's motives. The day-to-day functioning of the licensing committees is apparently to be left to the whim of the Secretary of State, subject to revision at whatever time he or she may think necessary. I doubt whether I am alone—I am sure that I am not—in questioning the democratic nature of a system in which such important matters are not only not in the Bill but not even subject to delegated legislation. That point has been made throughout our debate this evening by the noble Lord, Lord Avebury. We find ourselves in a position in which we are trying to debate and scrutinise legislation that provides barely half of the picture.

The framework for guidance was issued, but rather than alleviating my fears, it has confirmed them. Guidance will be provided on almost every aspect of the Bill—to recommend, confirm, underline and emphasise. It sounds more like dictation from the Department for Culture, Media and Sport rather than flexibility and liberalisation.

Amendment No. 85 is designed to probe that grey area. Subsection (3) stipulates that the licensing authority should, have regard to … its licensing statement … and … any guidance".

There may be instances in which the two are at odds. We know now from the Minister which will take precedence, and we are grateful for that clarity. However, we on this side of the Chamber feel that the matters that we have been led to believe will be dealt with in the guidance should rather be handed over to delegated legislation, which may be discussed in the form of statutory instruments. We believe that that would result in a sensible compromise between demanding that much more is in the Bill and the other situation with which we are now presented, by which so much of what I called at Second Reading the nuts and bolts of the legislation is left to guidance, which can be changed at any time without referral to interested parties—the Government like to refer to them these days as stakeholders.

Such regulations would be subject to scrutiny by your Lordships' House and would not be able to be revised without approval of this House and the other place. It is imperative that such an alteration is made. For those reasons, I express my intention to oppose the Question whether Clause 177 stand part of the Bill. I propose our Amendment No. 91 as a viable alternative.

The Government have promised the publication of the guidance by the spring, which may be as late as May. We have recently been told that it will be published in the new year. Which part of the new year? We fear that it will appear when the Bill has left your Lordships' House and passed to the other place. That simply is not good enough.

Although the hour is late, I could spend an enormous length of time on this amendment, and I know that other Members of the Committee want to contribute to this debate. However, the guidance notes do not deal with many issues. Our postbags are full of letters from interested parties concerned about the Bill's details. We strongly believe that much more could be in the Bill.

A classic example is that of off-trade, which seeks clarity about whether all or part of a premises can remain open at the same time in future. One part of the guidance notes says that that is the case; but what if the guidance notes change? A supermarket may find itself able in the first instance to have its alcohol section open 24 hours a day in future, along with the rest of the supermarket, but three years down the road that may change. That leaves an enormous amount of uncertainty. Is that fair on the industry, on local authorities and on all interested parties, which really means all of us?

This is an important debate and we hope that the Minister will take it seriously. Many issues deserve more attention and should be dealt with in the Bill. If not, they deserve to be dealt with through delegated legislation, which affords all of us the opportunity to scrutinise the workings of the legislation. I beg to move.

10 p.m.

Lord Redesdale

The purpose of putting my name to Amendment No. 84 was to pave the way for Amendment No. 91, which we support wholeheartedly. This seems to be another occasion on which the Government have been given time to clarify the basis under which a Bill will operate as set out in the framework; but that guidance turns up extremely late. Indeed, we are given an unspecified time of the New Year or the spring when the actual document will be in front of us. That does not seem acceptable.

The framework's introductory paragraph states: The framework is provided to enable and enhance Parliamentary scrutiny and debate in connection with the Bill". That may well be the case because it outlines certain aspects that will be in the guidance. But the detail is completely lacking with regard to how those will work in practice. Although the framework is a fairly long document, that lack of detail is almost unacceptable considering that we are discussing the broad skeleton of the Bill and that all the flesh is to be provided by the guidance, which is not with us.

Given that that is the case, we have resorted to using a sledgehammer on the nut of this amendment. To continue that analogy, it is a nut that we are quite prepared to smash open because without it we will be in breach of our very purpose of scrutinising the Bill. We are putting Bills before Parliament about which we have very little understanding of how they will work in practice.

The Minister will say that all the aspects that are in the framework document are going to be fleshed out to everyone's satisfaction. However, the difference between the White Paper and the Bill is quite substantial. What is being proposed as being in the guidance document and what is actually in it could be quite dramatically different.

Therefore, we support the amendment. I very much hope that the Minister can give not just an indication of when the guidance document will be published, but an actual date. If she cannot do so, I think that we shall have to return to this amendment. I should be surprised if we do not push the amendment at a later stage of the Bill because it goes to our fundamental concern that we will be allowing a Bill to pass through Parliament which we have not scrutinised properly.

Lord Cobbold

I speak in respect of Clause 177 on guidance. I have read the Framework for Guidance—I am not sure whether it was the right one—to be issued under this clause. I had hoped for clarification on an issue which has not so far been raised in the debate, but unfortunately I have been disappointed.

The whole focus of the Bill and of the debate so far has been the question of transferring responsibility for the licensing of pubs and clubs from magistrates to local authorities and on the implications of the 24-hour opening of pubs and clubs.

My concern is that neither the Bill nor the Framework fir Guidance deal adequately with the granting of entertainment and music and dancing licences. These licences are currently governed by Section 1 and Schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982. This section and schedule are to be specifically repealed under Schedule 7—page 150—of the Bill.

I declare an interest in that I am personally involved in the ownership and management of Knebworth Park in Hertfordshire. We have a music and dancing licence from the local authority for up to 15,000 people. This licence is renewable annually and covers a variety of open-air events and entertainment that take place in the park throughout the year. On occasions, we also play host to very large open-air rock concerts. Our licence capacity for those events is 125,000. In those cases we apply to the local authority for an extension of the licence to cover the specific event or events.

We work very closely with the licensing authority on such events, usually for many months in advance. I have discussed the Bill with our licensing officer. Neither of us can see how these situations would be covered by the Bill as it stands. I may say in passing that our local licensing authority does not foresee enormous problems in taking on the licensing of pubs and clubs.

I presume that our annual music and dancing licence will become a premises licence. But as the Bill stands, it is clear that one-off, large, open-air concerts would not be covered by the provisions for "permitted temporary activities" in Part 5 of the Bill, which are restricted to the arbitrary maximum of 500 people.

I tabled one or two clarifying amendments for the later stages of our debate. At this stage I merely wish to point out the absence of guidance other than a helpful letter I received from the Minister. I suggest to the Government that they need to put the situation right and perhaps to reconsider incorporating the relevant sections of the 1982 Act into the Bill, in particular Schedule 1, paragraphs 3 and 4.

The Lord Bishop of Portsmouth

Amendment No. 91 and Clause 3 are key here. The word "safeguard" comes to mind. There is great concern in the Committee about the nature of this legislation. I hope that these amendments are given careful consideration.

Lord Brooke of Sutton Mandeville

I have sympathy for my noble friend in bringing forward these amendments given where we are at this stage of the Bill and at this hour of the night. I do not intend to sound patronising, but the Government redeemed themselves considerably in the Minister's response to the last grouping.

Given that we are not making rapid progress on the Bill, I ask myself why the Government are so consistently in trouble on it. I have taken the egotistical liberty of going back to the National Lottery Bill, a measure not dissimilar in terms of breaking new ground and being pressed on us in part by experience elsewhere. Once the Albanians—the only other country in Europe who did not have a lottery—decided to have one, we felt that we should really have one ourselves.

The Government have shown great stamina in pursuing this issue since 1998. But they have been a little infirm of purpose in not ploughing an absolutely straight furrow—I do not use the word "straight" in any sense implying intellectual dishonesty—over those four years. Thus they left the total constituency, everybody involved—the industry and the local authorities—in some doubt as to their ultimate intention.

On the National Lottery Bill we sought to he utterly transparent. I was not present for Second Reading. I know the Minister had a problem with her voice. Perhaps because of that she was not interrupted. When I moved the Second Reading of the National Lottery Bill in the other place, I spoke for one hour and gave way every other minute. We did so deliberately to show that we had absolutely nothing to hide. I do not blame the Government. I simply say that the difficulties we are experiencing are partly attributable to suspicions about some aspects of the Bill, A considerable element of resolution therefore exists on this side of the House to get at what the Government's real intentions are.

To revert to the lottery, the consequence of the manner in which we played it was that the guidance to the lottery distributors had regard to exactly the same principle to which the noble Lord referred a moment ago. We did not have any difficulty at all. I know the Government may be troubled about the length of time it is taking us, but there is a desire to get this Bill right. If we do not get it right, we are sleep-walking into trouble.

Baroness Blackstone

Of course, I take the issues raised in this short debate by the noble Baroness, Lady Buscombe, and others, seriously. The noble Baroness asked me to do so, and I do. I can say to the noble Lord, Lord Brooke, that I have absolutely nothing to hide. It is in the interests of neither the Government nor this Committee to try to hide things. Far from it.

Clause 177 of the Bill allows the Secretary of State to issue and revise guidance to licensing authorities on the discharge of their functions under the Bill. Clause 4 requires licensing authorities to have regard to any such guidance in carrying out their licensing functions, as my noble friend Lord McIntosh of Haringey spelt out several times with regard to the previous group of amendments.

Amendments Nos. 35 and 91 are intended to replace the guidance that the Secretary of State may issue under the Bill with regulations. The regulations could be issued or renewed only with the approval of both Houses of Parliament. My right honourable friend the Secretary of State would have to come to Parliament every three years to renew the regulations. The guidance that the Bill provides for my right honourable friend the Secretary of State to issue will be developed in consultation with a wide range of stakeholders, including representatives of local authorities and the licensed trades. It is intended to promote best practice, to aid licensing authorities in making licensing decisions and to help business. It will, therefore, help to ensure a degree of consistency, where that is needed, throughout England and Wales. As my noble friend Lord McIntosh of Haringey said clearly, it is intended to be flexible, helpful and, importantly, responsive.

There are two issues. One is whether the guidance should be subject to scrutiny by Parliament. I have certainly noted the recommendation of the Delegated Powers and Regulatory Reform Committee that a mechanism should be made available for guidance to be debated by each House. Of course, I take that recommendation seriously and will consider how we ought to proceed.

We must consider what scrutiny is appropriate, but I doubt that the full panoply of secondary legislation renewable every three years is the most useful way to proceed. For a start, it would make for an extremely inflexible system. In the light of the licensing authorities' experience of the new regime, it may be necessary to revise the guidance. That happens from time to time, when governments provide guidance for local authorities and others. The revisions might be minor, but they might need to be made quite frequently.

The power in the Bill for the Secretary of State to issue guidance to the licensing authorities is designed to provide those authorities with an accessible and readily usable best practice guide. It will inform them of the types of matters that the Secretary of State considers likely to need to be taken into account as they reach their decisions and exercise their licensing functions generally. It is not intended to set out prescriptive rules that must be adhered to in all cases by all authorities, when they take decisions and exercise their general functions. I am sorry that the noble Lord, Lord Renton, is not now in his place, but I think that that is what he was referring to, when he spoke on the previous group of the undesirability of having such rigidity. My noble friend Lord McIntosh of Haringey then explained that the guidance would not be rigid but flexible.

Regulations would be rigid, and that would be inappropriate, as the system must be responsive to local conditions and needs, which will differ from authority to authority and application to application. It is not an area for prescription of the degree of detail and scope of application. That would be the case if the guidance were replaced by regulations, as the amendment would provide. I must tease the noble Baroness, Lady Buscombe, as she teased the Government for being too prescriptive. The noble Baroness is now asking, in this group of amendments, that the Government should be more prescriptive. She is asking for regulations, instead of guidance.

Regulations would be inappropriate, if we are to achieve our intentions for the guidance. Where we have seen the need for detailed rules to be consistently applied by all authorities, we have provided for those to be set out in regulations, by giving the Secretary of State a power. There are regulations attached to the Bill. However, we do not believe that guidance can be uniformly applied for all authorities for all purposes. It is right that assistance should be given, but authorities should not be compelled into abiding by a rigid framework, where recommendations for best practice and expectations cannot be justified, due to local considerations in the promotion of the licensing objectives, in the exercise of their functions.

I hope that noble Lords will agree that approaching guidance through regulations would not be appropriate. We must think of a way that would give a genuine opportunity for scrutiny but, at the same time, allowed the Government and the licensing authorities sufficient room for manoeuvre to adapt to emerging experience and changing conditions.

The other issue is certainty about what the guidance will contain. Of course, I understand that there is anxiety about that. I understand the concerns that have been expressed about the guidance which the Secretary of State would issue were the Bill to become law. There would be advantages as we consider aspects of the Bill if that guidance were already available in full. I appreciate that.

For that reason, we have already provided Parliament with a framework document which makes clear what the guidance will contain and its range-although, admittedly, not all the detail. We are prepared to address this concern and to enable scrutiny if the framework has not fully met the point for some noble Lords.

There are two reasons why the guidance itself is not yet available. First, as the framework makes clear, a lot of it is technical material that requires detailed preparation. Secondly, some of it raises important issues on which it is vital for us to consult stakeholders. I understand the wish to see the guidance in its full form. However, it is equally true that we would have been accused of being rather presumptuous if before today we had completed the technical work and consulted stakeholders on guidance for a Bill that had only just received its Second Reading.

The work is in hand. Meetings are already taking place with the wide range of interests and government departments concerned. A tight schedule of consideration has been planned for January.

Today I am unable to undertake to produce guidance of this complexity in a couple of weeks. Indeed, I cannot commit Ministers in other departments which are involved to consider the guidance in a few days and set aside the usual conventions of collective agreement. However, given the strength of views on this point, I am willing to undertake to examine what can be done, while respecting all the points that I have made, and to examine whether an early draft can be exposed for consideration by noble Lords before the Bill completes its stages in this House.

Clause 177 provides that the Secretary of State may issue and revise guidance to licensing authorities on the discharge of their functions under the Bill. Subsection (2) provides that the Secretary of State must arrange for guidance issued or revised to be published in such a manner as he considers appropriate. The guidance issued under this clause will be provided for licensing authorities, but, by providing that it must be publicised, it would be widely available to the police, operators of licensed premises, their legal advisers and the general public. It will be a key mechanism for ensuring consistent application of a licensing regime across England and Wales and for promoting fairness and proportionality. Licensing authorities will be required by the provisions of Clause 4 to have regard to this guidance.

Perhaps I may briefly turn to the point raised by the noble Lord, Lord Cobbold. A single premises licence can cover all the activities to which the noble Lord refers and it would last for the life of the business involved. Equally, a temporary premises licence can be obtained under Part 3. That licence could be time limited and cover any number of people. However, I look forward to listening to the amendments that he put forward when we reach that stage of the Bill.

With the assurances that I have given, will the noble Baroness withdraw her amendment and agree that Clause 177 stands part of the Bill?

Lord Norton of Louth

The Minister has made clear that in drawing up the guidance the Secretary of State will consult widely and, indeed, is doing so. Given that, is there any reason why the requirement to consult widely should not itself be incorporated in Clause 177?

Baroness Blackstone

I have already made it clear that this consultation is taking place. I would have thought that that is now on the record and am not clear why we need to amend Clause 177. However, if the noble Lord wants to table an amendment, we can, of course, consider it.

Baroness Buscombe

I thank the Minister for her response and I thank all Members of the Committee who have taken part in this relatively brief debate, given its importance. It is connected with the hour and also the fact that throughout Second Reading and in Committee noble Lords have made clear their deep concerns about Clause 177. I am grateful to the Minister for accepting those concerns and responding accordingly.

We are grateful that in the light of what we have said the Minister seeks to find genuine opportunities for scrutiny. The Delegated Powers and Regulatory Reform Select Committee has recommended that a mechanism be put in place for debate in both Houses. I am also grateful to the Minister for saying that we might see an early draft of the guidance in January. I thought that we already had one in the framework. Noble Lords on the Bench opposite are shaking their heads, so perhaps we can look forward to something new and different in 2003.

As my noble friend Lord Brooke of Sutton Mandeville said, we shall sleepwalk into trouble if we do not continue to press our concerns with regard to the need for more clarity in the Bill. The Minister expressed concern that if our Amendment No. 91 were accepted the Secretary of State would have to come to Parliament every three years. That is a good idea—I believe that Secretaries of State should come to Parliament more often. It is typical of this Government, who prefer to treat Parliament as something of an irritant.

There are regulations in other parts of the Bill. I do not mind that the Minister attempts to tease me. I am not teased, because we seek to have more clarity. We believe that certain issues go to the heart of the legislation and that it would be sensible for them to be subject to regulation, which could be properly debated and amended by this House and another place on a three-yearly basis. That is entirely flexible and meets many of the concerns that Members of the Committee have raised previously and today.

I shall not detain the Committee longer, except to say that detailed preparation is of course required in relation to the drafting of the Bill and the guidance notes. However, it has been two and a half years since the publication of the White Paper and I am afraid that we are rightly becoming somewhat impatient on behalf of all interested parties to the Bill. We wait with bated breath to see the new guidance in draft form in January and to hear—

Baroness Blackstone

I would not want the noble Baroness to be misled. I said that there is a programme of work in January but I did not specify the precise time when we would be able to bring the draft guidance forward. I said that we would be able to do so at some point during the various stages of the Bill in this House.

Baroness Buscombe

I thank the Minister for clarifying that point. Perhaps I may be so bold as to indicate that I speak with the collective voice of the Chamber when I say that we shall not be content for the Bill to leave this House unless we have had sight of and an opportunity to debate the guidance. We are grateful that so much preparation is taking place and we hope to have the opportunity to review it before it leaves this Chamber.

There will be another opportunity for another place to scrutinise it, but let us respond to what the Select Committee has recommended and what noble Lords have requested; that is, a genuine opportunity for scrutiny. We would like to see that in this House and we therefore wait to see what the Minister will bring forward in terms of opportunity for scrutiny. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

House resumed.

House adjourned at twenty-five minutes past ten o'clock.