§ Consideration of amendments on Report resumed on Clause 4.
§ [Amendment No. 24 not moved.]
Lord Brooke of Sutton Mandeville moved Amendment No. 25:
Page 3, line 12, at end insert—
( ) the protection of human rights
§ The noble Lord said: My Lords, the version of the Bill that we study on Report does not carry the same health statement that the Bill carried at Second Reading and in Committee, whereby the Minister says that it is in accordance with the European Convention on Human Rights. I do not intend to cast any disagreeable aspersion on the Minister in moving the amendment.
§ The Minister will remember that the issue of human rights arose late in our proceedings in Committee. There was an exchange between the noble Lord, Lord Davies, and myself at a late stage on Clause 180, so I do not apologise for introducing this simple amendment at this stage, on the licensing objectives in Clause 4.
§ Section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a manner incompatible with the convention, unless compelled to do so by a primary Act of Parliament. The Government have signalled their intention to produce an Act that is consistent with the convention, but the manner through which the intention is given effect in the Bill is in some respects unsatisfactory, because the licensing objectives do not include all the convention rights.96
§ The objectives do not require licensing authorities to protect the following convention rights: first, the protection of property rights of licensees and others whose property may be affected by the grant of licences, in Article 1, Protocol 1, and, secondly, the right to freedom of expression in Article 10. That has already been discussed in correspondence with the Department for Culture, Media and Sport in a letter from a residents' association in Soho dated 28th January. That organisation believes that this amendment is the simplest way in which to ensure that licensing authorities have duties to consider all the convention issues, and other human rights issues, that arise, without having to specify each of them in the Bill. I beg to move.
§ Lord Davies of Oldham
My Lords, as the noble Lord identified, the Bill must be interpreted in a manner compatible with the terms of the European Convention on Human Rights. I appreciate that, in moving the amendment, he is not casting any aspersion on the ministerial position of having signed the Bill as consistent with the broad objectives of human rights.
The Government contend that, no matter how noble the aim or aspiration, the licensing objectives must focus on the objectives to which a direct contribution can be made through the licensing regime itself. In particular, conditions may be attached to premises licences, which are necessary to promote the licensing objectives. It must be remembered, however, that conditions attached to licenses or club premises certificates will, if breached, give rise to the potential for criminal sanction. Such conditions, which relate directly back to the objectives listed in the Bill, must be capable of being couched in precise terms so that the licence holder, the enforcement agencies and the courts themselves will know when criminal behaviour has occurred.
Therefore, we are not focusing in the Bill's objectives on aspirational themes. We are focusing on practical, transparent restrictions that are necessary for the promotion of the Bill's licensing objectives. For example, to assure public safety, a strict limit of, say, 350 persons could be imposed as a venue's capacity. If 351 persons were present on the premises, everyone would be clear that something had gone wrong which could lead to a prosecution because an offence had occurred. Similarly, if closed circuit television is needed to prevent crime, it can be made a condition of the licence that CCTV is present, switched on and functioning.
The protection of human rights gives rise to an array of balancing acts, between rights that recognise obligations and rights between individuals. I think that the noble Lord, Lord Brooke, will recognise the force of that argument. The right of performers, for example, to freedom of expression on the premises needs to be balanced with the right of a nearby local resident to the peaceful enjoyment of his possessions 97 and his home. Those are not easy judgments, as our courts know only too well, and it really would be enormously difficult for a licensing authority to frame conditions in pursuit of such an aspiration, let alone to determine whether they were necessary in any particular set of circumstances.
Of course I do not disagree that the protection of human rights should be at the forefront of the minds of everyone involved in the licensing world. It is just not appropriate to include it in the objectives of Clause 4—which are already directed at ensuring that convention rights are observed, but which are, of course, designed to reflect the appropriate consideration for a licensing system and control that properly balances a range of competing interests.
I therefore recognise the amendment's objectives—the noble Lord has expressed them cogently and given them the highest consideration—and I know their source. However, this is a Licensing Bill that focuses on the decisions and judgments that licensing authorities must make. The Minister's signature on the Bill attests to the fact that it meets the test of observing the broad framework of human rights. I therefore hope that the noble Lord will withdraw the amendment.
§ 8.45 p.m.
§ Lord Brooke of Sutton Mandeville
My Lords, I am extremely grateful to the Minister for the care and attention that he gave to the amendment and for the thoughtfulness of his response to it. He did not suggest that it was in any sense a paving amendment to other amendments which I may move later, but I think that, as its progenitor, I can so claim. As the opening ball of a quite prolonged series of amendments on human rights, it is of a rather categoric nature, and rather more full than the opening ball of many of the matches currently taking place in the southern hemisphere. I understand what he said. We will return to the subordinate elements of this issue. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Brooke of Sutton Mandeville moved Amendment No. 26:
Page 3, line 16, leave out paragraph (b).
§ The noble Lord said: My Lords, Amendment No. 26 is the opening amendment of a group, the rest of which will be moved and spoken to by other noble Lords. Amendment No. 26 is not a bad amendment with which to open this particular discussion.
§ In carrying out its licensing functions, a licensing authority will be required to have its own licensing statement in addition to any guidance issued by the Secretary of State. That is familiar to all Members of your Lordships' House from the Committee stage and, indeed, from the Bill. Amendment No. 26—my Amendment No. 31A, which we shall discuss shortly, is in the same category—is proposed as a means of ensuring that those two requirements complement rather than compete with each other. There is a danger 98 otherwise that licensing authorities and the courts will be unclear as to Parliament's intentions on which should come first in the licensing authority's considerations. The proposal is that a licensing authority should be required to have regard to the Secretary of State's guidance when formulating its licensing statement. It will be clear from the amendment that the statement of licensing policy itself should guide the determination of licensing applications.
§ Amendments No. 26 and 31A, taken together, reflect the respective roles of central and local government under other comparable regulatory regimes, for example, in planning. Under the Town and Country Planning Act 1990, the starting point for the determination of a planning application is t he local authority's development plan. In determining the contents of its development plan, the planning authority has regard to regional planning guidance and other policy guidance issued by the Secretary of State. I hope that those words are sufficient to set the scene of the local authority interest. I beg to move.
§ Lord Redesdale
My Lords, I wish to speak to Amendments Nos. 27 and 30. The amendments are self-explanatory. They seek to substitute regulations for guidance. We on these Benches do not like the proliferation of secondary legislation. Our major objection to the guidance is that it can be changed by the Secretary of State at a moment's notice. The noble Lord opposite shakes his head. I refer to the flexibility that we discussed at earlier stages of the Bill. We believe that noble Lords should have the opportunity to examine the guidance. Unfortunately, it arrived only recently. However, I thank the Minister for providing the guidance which has meant that, unlike at the previous stage, our deliberations today on the Government's intentions are based more on fact than on supposition.
The Government's Amendment No. 28 goes some way to meet our concerns. I shall listen to the Minister's comments although at Third Reading I may return to the need for regulations. However, Amendment No. 28 is helpful in that it permits the guidance to be scrutinised by Parliament.
§ Baroness Buscombe
My Lords, I wish to speak to Amendments Nos. 27 and 30 which stand also in my name and that of my noble friend Lord Luke. In Committee I spoke on this subject at some length. I do not wish to repeat myself unnecessarily. The job of your Lordships' House is to scrutinise. With so many crucial details left off the face of the Bill and included instead in the guidance, such scrutiny of what is in effect the practical working of the legislation is nigh on impossible.
I appreciate that the Government may say that there is flexibility. We accept that the Government are keen to ensure that there is a degree of flexibility—we have sympathy with that—but the advantage of the guidance is that it may be changed by the Secretary of State to meet situations as they develop under the new licensing system. Although we are grateful To the 99 Minister for publishing the draft guidance in good time for us to consider its contents prior to this stage of the Bill, our initial reaction remains somewhat unchanged in relation to the need for regulations.
We believe that there is no justification for compromising the scrutinising duties of the House simply to make allowance for the fact that no one knows how effectively the new system will work. The situation seems to have taken a turn for the better, however. Although the Government took their time in getting a draft version of the guidance to us, I was pleased that they took our admonishments to heart and tabled Amendment No. 28. We look forward to hearing what the Minister has to say about that amendment, and we certainly welcome the obligation that the guidance and any subsequent revision of it be laid before the House and approved by resolution. That is a positive step forward and allays a good deal of concern about the nature of the guidance.
§ Baroness Blackstone
My Lords, on 13th February we made available a draft of the guidance, placing copies in the Library. I am grateful for the noble Baroness's welcome of the fact that we were able to do that. It is an early draft. It was produced considerably ahead of our original schedule and I make no bones about the fact that some of it will need to be changed when it is formally issued.
The guidance will evolve for several reasons. The policy will develop as we respond to concerns expressed in our debates. Our consultation on the guidance with a wide range of stakeholders, not least the local authorities, continues and will go on until it is finalised. Our discussions with other government departments and their agencies are also continuing, so some elements of the guidance will probably have to change to reflect developing policies in those departments. Particularly crucial will be the emerging findings of the Prime Minister's Strategy Unit in developing the alcohol harm reduction strategy, which will need to be reflected in the drafting of the guidance.
It may be helpful if I explain a little more about why we believe that guidance is a sensible approach to take. When reviewing licensing law prior to the publication of the White Paper, the Government became conscious of a number of problems with the current law. There was considerable inconsistency in practice and enforcement of both alcohol and public entertainment licensing law. Despite valuable initiatives such as the Justices' Clerks' Society's Good Practice Guide, the problems continued. In the case of local authorities, the inconsistencies could not always be justified by local differences. Those inconsistencies hampered planning by businesses involved in the sector and, where boundaries adjoined, could cause problems for the police, as people move across the boundaries seeking more liberal regimes.
Successive governments have had to tell each House in a number of debates on the subject that one matter or another was for licensing justices or the local authorities, and that any other change would have to await primary legislation. On one level, that 100 meant that successive governments could evade accountability for many of the matters that we have been debating. Primary legislation was always just a little out of reach.
We therefore concluded that what was needed was a flexible mechanism, as referred to by the noble Baroness, which would promote best practice, ensure reasonably consistent application of licensing powers across the country and promote fairness, equal treatment and proportionality, but one which would be responsive to local circumstances. Guidance appeared to be the logical way forward.
Licensing authorities should be required to have regard to the guidance when exercising their powers but, equally, they should be free to depart from it where there are good reasons for doing so or local circumstances so dictate. In addition, the mechanism chosen needed to be flexible and responsive, so that advice on new issues arising could be dispatched to the authorities quickly and effectively without any delay.
I hope that it will also be accepted that, in drafting the guidance, we have listened carefully to the anxiety expressed in Committee. We have particularly considered the views of the Delegated Powers and Regulatory Reform Committee. As the House will recall, the committee stressed that a mechanism was needed to enable the House to debate the guidance before it was issued to licensing authorities. I shall therefore move Amendment No. 28 to meet the committee's concerns; I believe that it does so. Under Amendment No. 26, a draft of the initial guidance must be laid before Parliament and approved by resolution in each House. Any revisions or supplements to that guidance would come into force only when laid before Parliament. If either House disapproved the revision within a period of 40 days, a further revision would have to be laid.
As my noble friend Lord McIntosh said, that would give both Houses the opportunity to debate and disapprove the guidance and any subsequent revision of it. However, it would also preserve the flexibility to give clear and sometimes urgent advice to licensing authorities in response to developing situations.
In conclusion, I hope that the House will accept Amendment No. 28. In doing so, I hope that noble Lords will not press Amendments Nos. 27 and 30 in light of the concessions we have made.
I turn to the amendment of the noble Lord, Lord Brooke, which proposes that the licensing authority should not be required to have regard to the guidance at all. That would wholly undermine its purpose of promoting best practice and consistency. I have already outlined why I believe there is considerable merit in the guidance approach as a mechanism for spreading best practice. In discussion with a wide range of stakeholders, virtually everyone who had seen it thought it a valuable tool that they could support. While we may debate the content long and hard until it is finally issued, I hope that the noble Lord, Lord Brooke, can be persuaded that there is nothing sinister here and that guidance at least in some form is an 101 important and worthwhile part of the regime that the Bill proposes. I hope that he will not press his amendment.
§ 9 p.m.
§ Lord Brooke of Sutton Mandeville
My Lords, I am grateful to the Minister for her response. I respect the words in Amendment No. 28. I made it clear when I moved the amendment that it was intended to be balanced. I turn to what the noble Baroness laid at my door in relation to Amendment No. 26. In terms of not paying attention to the guidance, Amendment No. 31A refers to the need to have,regard to any guidance issued by the Secretary of State under section 177".We discussed the matter at length in Committee. The noble Lord, Lord McIntosh, responded at that time. There was, at least on my part, an understanding that, as with judicial review, there was a responsibility on local authorities. We have debated the matter and the Government have moved in terms of Clause 177. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 27 not moved.]
§ Clause 177 [Guidance]:
Baroness Blackstone moved Amendment No. 28:
Page 98, line 15, leave out subsection (1) and insert—
§ On Question, amendment agreed to.
Baroness Buscombe moved Amendment No. 29:
Page 98, line 18, at end insert—
( ) Guidance issued under this section must set out in particular the specific reasons which the Secretary of State considers justify the prevention of any licensing authority from restricting the number of licensed premises in any part of a town centre or other locality within the licensing area.
The noble Baroness said: My Lords, we now turn to the subject of saturation. A similar amendment to Amendment No. 29 was moved in Committee. The noble Baroness, Lady Blackstone, said in response:
I am willing to return to the House on this matter on Report. Indeed, I have set out our thinking on where we might be able to come up with some appropriate amendments".—[Official Report, 19/12/02; col. 803.]
§ The Government have tabled amendments that enable the local planning authority to be a responsible authority under Clause 13, and the rest they leave to the guidance. We had hoped that they might also have imposed an obligation on the licensing authority to consult the local planning authority when determining its licensing policy under Clause 5(3), but they have not.
Zoning was suggested at Committee stage as a method adopted by many countries of getting round the problem. This Government have specifically said that they will not encourage it. The Minister said that,
imposing a blanket closing time in a particular area might perpetuate the disorder that is associated with artificially early fixed closing times and give rise to a new form of disorder as groups of people migrate between zones".—[Official Report, 19/12/02; col. 804.]
§ We would be interested to hear the Minister refer this evening to that view on zoning, reaffirming it or otherwise.
§ The government guidance gives an answer that seems to be the closest to a possible compromise between their aims and what we believe is right. Paragraph 4.13 states that in certain circumstances, where it can be proved that an additional licensed premises would create exceptional problems of disorder and nuisance, which would undermine the licensing objectives, and where relevant representations are received to that effect, the licensing authority can refuse a new licence because the area is already saturated with licensed premises. However, that policy should not be absolute; nor should quotas be imposed. It is a case-by-case consideration. We welcome that. It is a great step in the right direction. Again, we are concerned that it is included only in the guidance, but it clarifies the situation.
The guidance further states that it is impossible for licensed premises to be responsible for the behaviour of their customers when they have left the premises, if, for instance, they congregate and cause disorder. The licensing policy,
should also set out the other mechanisms that are available for addressing such issues".
§ Those mechanisms include planning, police enforcement, measures to deal with transport and promoting a clean environment.
§ We support the proposals in the guidance, especially since the guidance will be subject to an affirmative instrument in your Lordships' House. We do not support those who suggest a flat refusal of licensed premises when a limit is reached on the grounds of saturation. That would stop new businesses opening 103 and allow already licensed premises to stagnate. Standards will fall because of lack of competition. I beg to move.
§ Lord Clarke of Hampstead
My Lords, Amendment No. 35 deals with saturation. I shall speak also to Amendments Nos. 64, 86 and 98, all of which refer to the creation of a saturation policy for the licensing authority.
Local authorities will need to develop a policy on saturation and cumulative impact to be used when considering new applications. Once a saturation policy is determined, it will provide a stronger voice for the local community. It will also be a valuable tool for licensing authorities when they consider the wider, social and environmental impact when considering applications.
Cumulative impact, which is usually negative, is the impact on the wider area and community of the presence of a number of licensed premises and their customers, not just the activity in the immediate vicinity of any particular premises. Around the country, in big cities and small towns, residents, businesses and statutory agencies want to see adequate control of problems arising not only from licensed premises but also from customers once they have left those premises.
The Local Government Association has received reports from authorities as diverse as Penwith, Worthing, Richmond and the Cotswolds. They have all reported that the issues arising in those areas include fights, disorder, shouting, loud car stereos, horns, car doors banging and anti-social behaviour such as graffiti. There is a suggestion that vandalism is sometimes linked to the anti-social behaviour. I have listened carefully to previous debates on other methods of dealing with those problems.
In earlier debates on the Bill, we heard about the problems of litter, vomit and urination and defecation in the streets. I make no apology, especially at this late hour, for mentioning them again. They are real concerns affecting real people, who have every right to expect the local licensing authority and the local authority fully and properly to take measures to control what goes on around their homes.
Amendment No. 35 would strengthen the statement of licensing policy set out on pages 3 and 4 of the Bill. If the amendment were agreed to by your Lordships, Clause 5(7) on page 4 of the Bill would read:Regulations may make provision about the determination and revision of policies, including policies relating to the management of cumulative impact and saturation, and the preparation and publication of licensing statements, under this section".Paragraph 4.15 of the guidance document is helpful but it does not go far enough to assist the licensing authorities. I welcome the recognition contained in that paragraph that, in some circumstances, it may be necessary for the licensing authority to adopt a special policy of refusing new licences because the area is 104 already saturated with licensed premises. The amendments are proposed in an attempt to assist the authority when it has to consider new applications.
§ Lord Redesdale
My Lords, we on these Benches also support the thoughts behind the amendments. On reading the guidance, I was interested to see that we are prepared to take certain aspects from the Scottish experience. I believe it is important that we do not consider the issue of zoning, which turned out to be such a failure in Scotland. It seems unfortunate that we do not also, following the Scottish experience, deregulate the non-licensable activity of performing live music, which takes place in Scotland without major problems.
However, the matter of saturation is important. From my experience in Newcastle, I know that we should not follow the issue of not allowing any new licences. It leads not only to a decrease in the amount of competition but also to an increase in the amount of organised crime, whose participants see it as a safe way of investing and laundering money and distributing drugs.
The issue of saturation is important. I do not believe that the amendments will solve the problem or that they will be pressed, but I look forward to the Minister's reply.
§ Baroness Blackstone
My Lords, we have listened carefully to the arguments put to us in the House and elsewhere on the matter of cumulative effect. We have addressed our policy on it both through our proposed legislative changes and through the statutory guidance to be issued under the Bill. We are committed to ensuring that licensing authorities have the powers to address disorder and nuisance arising from the carrying on of licensable activities.
We have set out in the draft guidance the circumstances in which the sheer magnitude of the number of premises might be a legitimate consideration both in the policy statement and in considering individual applications. In effect, we have made it clear in the guidance that licensing authorities will be able to take into account saturation or cumulative effect where it exists. They will be able, for example, to make clear in their statements of licensing policy, which will be subject to consultation, that an area could cope with no more premises of a particular type and that there would be a general presumption against granting any more licences for premises of that type. I hope that noble Lords will recognise that that is a significant shift in emphasis. We have discussed this change with the LGA and it has welcomed it warmly.
However, we also recognise that the licensing authority must be given the tools that it needs to carry out its duties, while preserving a sensible balance between regulation on the one hand and, on the other, reform. We intend to achieve that through the government amendments in this group. Our amendments to Clauses 13 and 68 will add the local planning authority to the list of responsible authorities which are able to make representations on an 105 application for a premises licence or club premises certificate. That will give an additional voice on the type of issues that arise as a result of saturation.
We should not lose sight of the fact that one result of the amendment is that, in the vast majority of cases, at least two wings of the local authority will be empowered to make representations to the licensing committee—the environmental health authority, which is already a responsible authority under the Bill, and the local planning authority. Both of those bodies will usually be part of the same local authority as the licensing authority.
The government amendment to Clause 7 is designed to support better communication between the relevant local authority committees as a further safeguard to ensure that important issues are not allowed to fall between the cracks. It will place a duty on the licensing committee, when considering a matter that relates to a licensing function and to a function that is not a licensing function, to consider (unless the matter is urgent) reports from other committees of the local authority on the matter before discharging the function. In effect that means that if the licensing committee were considering a licensing matter on which representations had been received in relation to saturation from, say, the local planning authority, it would need to consider a report on the matter before arriving at a decision. That will ensure that all relevant factors—including cumulative effect—can be taken fully into account.
I hope that the House will recognise the measures for what they are: a genuine response designed to strengthen the licensing authority's role with respect to saturation or cumulative effect, while still retaining an important element of balance. The remainder of the amendments in the group would tilt the scales too far. The other amendments give rise to an issue of substance: whether limiting the number of pubs is always and of itself a desirable outcome to be pursued in its own right. We think that it is not.
It should he quite clear that it is still our policy that licensing powers should be used to meet licensing objectives. In the great majority of cases it seems most unlikely to us that keeping the number of pubs in a town to say nine or 10, rather than 12, will have any effect whatever on crime and disorder or public nuisance. I doubt very much whether the average reveller consults Home Office licensing statistics before deciding whether to go out in Camden or Croydon.
However we recognise that where the sheer number and concentration of licensed premises can, in the light of research and expert advice, he demonstrated to have a real and damaging impact on disorder or public nuisance, that may be considered by the licensing authority. We need to take into account the very real concerns of licensing authorities and of some local residents about the licensing objectives, while not impeding those who want to go about their business in a professional and law-abiding way. We must remember that most licensed premises provide 106 employment in local economies and amenities for the local community with few of the problems that we have so often heard about.
The Government have set out their vision of what they want to achieve and have given licensing authorities the flexibility to respond to individual applications. If a licensing authority chooses to impose a limitation that may seem arbitrary to an applicant, it will be for the licensing authority to justify its actions, and not to seek to cite a list of justifications prescribed under this clause as in some way legitimising its actions.
The noble Baroness, Lady Buscombe, asked about zoning. We need to be aware of the problems that arose in Edinburgh in the early 1990s. Zoning of licensing hours was attempted, but the police experienced real problems with the movement of people across the boundaries. The better solution is to ensure that where there are residents living nearby, stricter controls about noise and disturbance are imposed.
Amendments Nos. 29 and 38 seek to ensure that the Government give clear reasons for their policy. I would hope that it is understood that we shall do so and that there is an opportunity now, and will be in the future, to debate those reasons. If we adopt a policy that is not grounded in any reasoning and that includes no explanation, I believe that it will be challengeable anyway.
I very much hope that we can agree that the short debate on this group has proved a useful means of clarifying what we intend and of securing a commitment from the Government that our policy intentions will be made clear.
§ Baroness Buscombe
My Lords, I thank the Minister for her full reply to the amendments. This important area was raised by several noble Lords on Second Reading and debated at length in Committee. It is interesting to hear from the noble Lord, Lord Clarke of Hampstead, the view of local authorities that the Bill and the draft guidance do not go far enough to assist local authorities.
We are all trying to find ways to provide local authorities with sufficient information and guidance—of course, we should like more of that in the Bill—to assist them in their difficult, tough task, especially in those areas with an already high density of premises. We are concerned to ensure that applications for new premises, which may genuinely contribute to the quality of life and enjoyment of an area, are not outrightly or flatly refused at the planning stage without serious consideration on the part of the local authority. Creating the right balance is difficult. We therefore hope that the earlier amendment whereby we sought to balance the enjoyment of those visiting the premises against the living and working amenity and environment of interested parties in the vicinity of the premises will assist local authorities.
As the guidance suggests, that judgment will he made case by case. We appreciate that it is a difficult area on which to legislate; we have discussed it again 107 and again. Noble Lords have said much in common about the need to strike a careful balance. I also appreciate what the Minister has reaffirmed about zoning. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 30 not moved.]
§ Clause 5 [Statement of licensing policy]:
Lord Hodgson of Astley Abbotts moved Amendment No. 31:
Page 3, line 18, leave out "three" and insert "six
§ The noble Lord said: My Lords, there are three amendments in this group. As I have not spoken before on Report, I again declare an interest as a managing director of a regional brewer, an operator of about 1,500 public houses. The amendments all relate to the statement of licensing policy—Clause 5. They are all designed to cut the red tape that has built up around the statement of licensing policy. The Government have constantly re-emphasised during proceedings on the Bill that they want it to be deregulatory. The amendments are designed to help them in that task.
§ The first issue is the timing of the revision of the licensing statement—the licensing functions. At present, the Bill requires the statement to be reviewed every three years. I made the point in Committee that if we want a fair balance between local residents' views and a stable framework for the development of entertainment facilities, three years is too short a period.
§ The noble Lord, Lord McIntosh, replying to the debate, referred to the Crime and Disorder Act 1998. He pointed out that the Act required a crime prevention strategy to be revised every three years, arguing that the amendment that I proposed, to insert the words "five years", was inappropriate because it was not contiguous with or a multiplier of the three-year period required by that Act.
§ I have therefore tabled the amendment, following on from the points made by the noble Lord, Lord Avebury, to provide for a six-year revision. In other words, at the end of every two periods of a crime prevention strategy, there would be a revision of the licensing policy. That in no way undermines people's right to have a proper say in licensing policy in their area. It provides a better framework for the development of new entertainment facilities. I shall not repeat what I said in Committee, but it is easily two to two and a half years from the inception of a new facility to completion, and it would not be fair for the goalposts to be moved by a licensing function in that way. The first amendment would achieve a balance between local democracy and commercial reality.
The second barnacle that I wish to remove from this part of the ship of state is the provisions that relate to those who must be consulted before policy can be determined. The list includes the fire authority. I have no problem with the fire authority having a role, but it need not have a role in the establishment of overall
policy. As I said in Committee, the fire authority will have to be involved because no one will get insurance without a fire certificate. That is nothing to do with setting overall policy. In reply to the amendment in Committee, the noble Baroness gave the game away. She said:
One aspect of public safety is the risk of a serious fire in premises full of young people".—[Official Report, 19/12/02; col. 828.]
§ She was right, but that matter relates to the premises licence and has nothing to do with licensing policy.
We will establish a situation in which everybody and his brother get involved in determining licensing policy. The fire authority does not need to play a role. The issues of public safety relating to a premises are the same whether it is in Newcastle, London or Truro. They will be considered by the fire authority and discussed with regard to the premises licence. In the interests of creating a less bureaucratic framework, the fire authority should not be mentioned in the Bill. In the guidance that we received after the Committee stage, paragraph 4.6 makes it clear that the licensing authority can decide whom it wishes to consult. The guidance says:
it is for each licensing authority to decide the full extent of its consultation".
§ If a local authority suddenly thought that it wanted to have fire authority input, it could do so.
§ The last amendment proposes the publication of the names of those who have been consulted. Clause 5(3) requires the licensing authority to consult such persons as it considers to be representative of holders of premises licences, holders of club premises certificates, holders of personal licences, businesses and residents. Whether one is on the side of the operators of entertainment facilities or of the residents, it is only fair that what consultation has taken place and who has been consulted are made public, so that other people—operators of entertainment facilities or members of the general public—know who has been consulted and the results of the consultation. It is a question of openness and transparency and would allow people to be clear about what is going on in their area.
§ For those reasons, the amendments are important. They would revise and tighten up the statement of licensing policy. I have no problem with the principle, but the process is over-elaborate, over-bureaucratic and over-cumbersome. I beg to move.
§ Baroness Buscombe
My Lords, I support the amendment moved by my noble friend Lord Hodgson of Astley Abbotts. Amendment No. 31 relates to the revision of licensing policy. We discussed the subject at some length in Committee. I shall not take up your Lordships' time to repeat what my noble friend said or what was said in Committee, but it is supposed to be a deregulatory Bill.
I have written down, "Give the industry a chance". It is difficult for the industry. As the Bill stands, local authorities are able to revise their licensing policy on a three-yearly basis, which could completely alter the whole approach that that particular local authority 109 may take with regard to policy for various kinds of premises. There must be a fair balance. Throughout the stages of the Bill we have heard much from the Minister with regard to the importance of consideration for everyone who wants to enjoy deregulated measures in relation to alcohol and entertainment laws—both in terms of the time that facilities will be open, as well as access and the number and kinds of facilities that will be available.
If the industry is to find itself responding on a three-yearly basis when, as my noble friend said, so many of the premises when introducing new facilities will need time in order to both develop those facilities and get them off the ground, it will be hard for them if they then have to react to what could be a radical change in policy. There is a need for a fair balance between what local authorities should be able to achieve and what my noble friend has referred to as reality on the ground.
I support. Amendment No. 36. It is important that there is proper open and transparent consultation. It is only fair that everyone should know who has been consulted and involved so that those involved—whichever side, if they must take sides—know where they stand.
§ 9.30 p.m.
§ Lord Redesdale
My Lords, we, too, on these Benches hope that the Minister will reconsider the three-year policy. It is such a short period of time that the licensing authority will be perpetually reviewing licensing policy. There is some weight in the amendment. I do not believe for one second that the Minister is about to accept a six-year period. However, there is a degree of merit for it.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the noble Lord, Lord Hodgson, for being so candid in his introduction of these amendments. He said that it was an issue of local democracy against commercial viability—an issue of the brewers against the people. The Conservative Party and Liberal Democrat Party have chosen to cast their lot with the brewers against the people. That is their problem, not mine.
Amendment No. 31 reduces the frequency of consultation from once every three years to once every six years. The argument in favour of a three-year period was partly that it coincides with the period for crime prevention policies. I know that the noble Lord, Lord Hodgson, did not greatly care for that argument and he has made that clear. However, it also strikes a balance between the provision of a stable operating environment for business on the one hand, and the flexibility that licensing authorities need to address changing local circumstances on the other.
In Committee, it was argued that the Government do not intend to give much local latitude or freedom to licensing authorities in determining their licensing policy. That is not the case. It would be the case if we agreed to the amendments, or it would be closer to being the case. What we are requiring is that local 110 licensing authorities should have regard to the statutory guidance in carrying out their licensing functions. Opposition parties are in favour of turning that into regulation. In other words, they are in favour of reducing the scope for local differences and local responsibility for licensing authorities. They are in favour of increasing the power of the Secretary of State. Again, so be it. That is their position. I hope that they do not have to defend it in public.
§ Lord Redesdale
My Lords, far be it from me to take a combative line. I am emollient at this time of night. However, did not the Minister give an indication that there would be variation in the fees? We do not believe that that is the case.
§ Lord McIntosh of Haringey
My Lords, has anyone ever accused me of being combative? I am no such thing. I am on the side of the people and of local communities. I am on the side of those who would say that situations might develop in local communities which make it desirable for the licensing policy of the local authority to be subject to variation. What happens? The Opposition parties and the noble Lord, Lord Hodgson, say, "Oh, well, it will be fie years before we get around to reviewing our licensing policy. Indeed, we're not allowed to review it in less than five years from now. You'll just have to wait until that time". That is not a plausible point of view and it does not fit in with any of the fine words which have been used in discussing the previous amendment.
Amendment No. 32 would remove the fire authority from the list of those who are required to be consulted. In Committee, the noble Lord, Lord Hodgson, said of the fire authority that its specialist expertise it public safety in regard to a building is vital. He referred to a building rather than to a policy, but there is a positive as well as a negative aspect to this. The fire authority can say "No" to provisions in a building, but surely it should have the opportunity of saying "Yes" to a positive policy which is in favour of fire prevention. In the week after Rhode Island, we should be particularly concerned to do that.
Excluding the fire authority is bad for the industry. The system is designed to be collaborative rather than adversarial. The policy is a useful tool to industry in developing applications because it allows the fire authority to state its priorities and give an indication of the issues to which it would pay attention while assessing applications. Surely, that is to the benefit of the industry rather than to the disbenefit.
Amendment No. 36 requires the licensing authority to publish details of those consulted on the licensing policy. That is exactly what we shall do in the regulations. It is not appropriate for that to be on the face of the Bill, but, clearly, the intention behind Amendment No. 36 is admirable.
§ Lord Hodgson of Astley Abbotts
My Lords, after that combative or non-combative effort, the noble Lord, Lord McIntosh, may say that he is on the side of the people but he is actually on the side of regulation, red tape, bureaucracy and centralised control, as 111 evidenced by the Bill. It carries a degree of centralisation so far unparalleled. I will be combative, too, and test the opinion of the House on this amendment.
§ 9.38 p.m.
§ On Question, Whether the said amendment (No. 31) shall be agreed to?
§ Their Lordships divided: Contents, 16; Not-Contents, 56.
|Division No. 5|
|Attlee,E.||Harris of Peckham, L.|
|Blatch,B.||Hodgson of Astley Abbotts, L [Teller]|
|Brooke of Sutton Mandeville, L. [Teller]||Marlesford, L.|
|Buscombe, B.||Montrose, D.|
|Cope of Berkeley, L.||Northesk, E.|
|Craigavon, V.||O'Cathain, B.|
|Fookes, B.||Shrewsbury, E.|
|Addington, L.||Jones, L.|
|Andrews, B.||Judd, L.|
|Barker, B.||Layard, L.|
|Bassam of Brighton, L.||Macdonald of Tradeston, L.|
|Blackstone, B.||McIntosh of Haringey, L. [Teller]|
|Burlison, L.||McIntosh of Hudnall, B.|
|Campbell-Savours, L.||MacKenzie of Culkein, L.|
|Chester, Bp.||Maddock, B.|
|Crawley, B.||Mitchell, L.|
|Currie of Marylebone, L.||Morgan, L.|
|Davies of Coity, L.||Northbourne, L.|
|Davies of Oldham, L.||Redesdale, L.|
|Elder, L.||Rennard, L.|
|Evans of Parkside, L.||Renwick of Clifton, L.|
|Evans of Temple Guiting, L.||Russell, E.|
|Falkland, V.||Sainsbury of Turville, L.|
|Farrington of Ribbleton, B.||Sawyer, L.|
|Filkin, L.||Sharman, L.|
|Gilbert, L.||Shutt of Greetland, L.|
|Goodhart, L.||Slynn of Hadley, L.|
|Gordon of Strathblane, L.||Thomas of Walliswood, B.|
|Gould of Potternewton, B.||Turnberg, L.|
|Grocott, L.[Teller]||Varley, L.|
|Hollis of Heigham, B.||Wallace of Saltaire, L.|
|Howe of Idlicote, B.||Whitty, L.|
|Hoyle, L.||Williams of Crosby, B.|
|Hughes of Woodside, L.||Williams of Mostyn, L. (Lord Privy Seal)|
|Jay of Paddington, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 9.48 p.m.
Lord Brooke of Sutton Mandeville moved Amendment No. 31A:
Page 3, line 26, at end insert—
(2A) Subject to subsection (3), in determining its policy a licensing authority must have regard to any guidance issued by the Secretary of State under section 177.
§ The noble Lord said: My Lords, I shall be extremely brief. As the Minister will know, this is the second half of the duality in which I moved Amendment No. 26. As the first amendment in that group sought to take away powers from the Government and Amendment No. 31A would restore the balance and give something to the Government, I withdrew the amendment which removed powers. Now I will have to find the procedural way, whatever that is, of not pressing the issue.
§ I am not absolutely certain whether, in her reply to Amendment No. 26, which was in a sense subordinate to the other amendments in that group, the Minister provided me with an answer to my concern about whether the licensing statement would be superior to the guidance issued by the Secretary of State or vice versa. I will study precisely what the Minister said on that occasion. She may wish to add something at this stage. I am not minded to prolong the debate, having withdrawn the earlier amendment. I beg to move.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the noble Lord, Lord Brooke, for making it clear that he was dealing with the amendment in combination with Amendment No. 26, to which he has already spoken. As he said, it would have limited the application of the guidance to the determination of the statement of licensing policy only rather than the exercise of the licensing functions in general. My noble friend the Minister made clear in her reply why that was unacceptable. In any case, taken on its own merits Amendment No. 31A is not necessary. The determination of licensing policy and the publication of the licensing statement is a licensing function of a licensing authority. By virtue of Clause 4(3), a licensing authority already has to have regard to guidance in formulating policy. Furthermore, the requirement for consultation in Clause 5(3) still applies, so, on its own merits, with or without Amendment No. 26, the amendment is unnecessary.
§ Lord Brooke of Sutton Mandeville
My Lords, it has been a rare privilege to be answered by not one Minister, but two on a combined set of amendments, even if they did not appear in the same group. I said that I would withdraw the amendment, and I shall do so. However, I shall read what the noble Baroness said in answer to the first one to see whether the issue is now settled. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 32 not moved.]
Lord Northbourne moved Amendment No. 33:
Page 3, line 38, at end insert "and of schools, social services and parents in its area
§ The noble Lord said: My Lords, local authorities have to produce a statement of licensing policy under Clause 5. That statement will have to take into account the licensing objectives of the Bill, one of which is the protection of children. It therefore seems strange that there is no mention of parents or those who know about the protection of children in the list of people 113 whom the local authority is required to consult. That seems so clearly an unintentional omission that I do not intend to speak at any length on the subject.
§ Amendment No. 34 refers to the possibility that the chairman of the area child protection committee should be the one consultee. That is not quite wide enough. The area child protection committee is responsible for children at risk, but not for all children—not even for children in need. Including parents, schools and the area child protection committee would just about cover the matter. I beg to move.
§ Baroness Buscombe
My Lords, I support Amendment No. 33. I hear the concern of the noble Lord, Lord Northbourne, that our Amendment No. 34 is not wide enough. We had degrouped the two amendments, but I felt it would be sensible at this late hour to speak to them together, particularly as the noble Lord has referred to Amendment No. 34. I take his comments on hoard.
Clause 4 introduces a new statutory licensing aim of the protection of children from harm. However, Clause 5(3), which establishes those with whom a statement of licensing policy must be agreed in consultation, does not mention any representative of the expertise and interests of those already co-ordinating work to protect children from harm in the locality. As well as their overarching role in co-ordinating the action to protect children from abuse and neglect, area child protection committees are also directed to consider the protection of children at risk from the misuse of alcohol. Amendment No. 34 would ensure that the new statutory aim of protecting children was advised and consulted on at the local level as effectively as the three aims relating to crime and disorder, nuisance and public safety. I have come back to this subject again and again.
Concerns are widespread that, under the new system for simplified premises licences, children will be allowed to frequent pubs and bars, in principle, unaccompanied by an adult, even late at night. In that case, the amendment, which was suggested to us by the Children's Society, would prove an important first step in drawing the area child protection committee into local licensing policy and considerations.
We feel, too, that in order to ensure consistency nationally the guidance from the Secretary of State should include strong directions for authorities' consideration of licence applications, and the kind of conditions that should be attached to protect children from harm. As well as the general discretion to attach licence conditions in pursuit of the licensing objectives, we believe that specific guidance should relate to all licence applications for premises where alcohol consumption by adults will be the primary activity, or among the main licensable activities, and all applications for premises opening beyond eleven o'clock at night. For those applications, there should be a referral of the question of children's appropriate access to the area child protection committee in the process of considering the application.
114 Each application and any awarded licence should include one of a number of the following items, subject to the advice of the committee. For example, it should include a specified lower age limit for unsupervised access; set aside hours during which restrictions on children's access should apply; specified types of activity during which restrictions on children's access should apply; and specified areas of the premises to which restrictions on children's access should apply.
This is a sensible amendment, although it is only a first step. We have other amendments, to which we shall speak later, which relate to what we believe is the right restriction on the age of those allowed. on principle, into premises, unaccompanied and with unrestricted access. This area is proving increasingly emotive outside your Lordships' House, as people become aware of this extraordinarily liberal measure. In our minds, it does not ring true with the Government's stated policy of developing a family friendly culture. How can it be family friendly if the parents do not have to he there?
I take on board the comments of the noble Lord, Lord Northbourne. The amendment by itself may he too narrow, given that the area child protection committee is most concerned with children at risk.
§ Lord Davies of Oldham
My Lords, I do not want in any way to pre-empt the debate, but I should inform noble Lords that the Government are not resisting the amendments. We will agree to consider them further. That might help the debate.
§ Baroness Howe of Idlicote
My Lords, I apologise for not having been in action during the earlier stages of the Bill. I had hoped to speak at greater length on an earlier amendment, which was not moved.
It could be assumed that Clause 5(3)(f) might include parents, social services and schools, but it would be clearer if those people were included in the Bill. As with the consultation, they are included in subsection(3)(a) with the police. As we know, social inclusion is a major government objective. So it is important that the views of those with an interest in and broad experience of what is happening in their community are not only listened to, but acted upon.
One of the four key objectives placed on licensing authorities is the protection of children from harm. It is an admirable sentiment. However, should we not take it one stage further and ensure that children themselves are heard in these matters? Now that citizenship is a compulsory part of the curriculum, might not a local youth parliament or youth club also serve as appropriate consultees?
§ Lord Redesdale
My Lords, although I support the sentiment behind Amendment No. 33 and the great work done by the noble Lord, Lord Northbourne, in relation to children, I believe that the groups which he 115 is representing are already represented, or could easily be accommodated under Clause 5(3)(f). We heartily support Amendment No. 34. It seems extremely pertinent to include a local area child protection committee representative.
§ Lord Davies of Oldham
My Lords, I am grateful to the House, and I pay tribute to the work done by the noble Lord, Lord Northbourne, in respect of the interests of children. Of course we recognise the importance of this issue to the House and to the wider public, as the noble Baroness, Lady Buscombe, indicated. We have been keen to ensure that as the debate on the Bill develops, we consult groups such as children's charities, Alcohol Concern, the police and the Association of Directors of Social Services to ensure that their concerns are taken into account.
The policy enshrined in the Bill is exactly that contained in the White Paper which received widespread support. Nevertheless, we are currently engaged in a further round of consultation to ensure that the policy we operate is the right one. I therefore hope that I can avoid detaining the House on this group of amendments by saying that the proposals represented in Amendments Nos. 33 and 34—namely, that the local area child protection committee, schools, social services and parents should be consulted on the development of a local licensing policy—are indeed worthy of further consideration. Indeed, very similar proposals have been made to us directly by the Children's Society. However, I should draw attention to the fact that, as the noble Lord, Lord Redesdale, indicated, Clause 5 already includes consultation with 116 persons considered representatives of local residents in an area. I suggest that that will obviously include parents.
That said, we certainly intend to examine the proposals very closely. Depending on the progress of consultation, we shall return to the issue at a later stage of the Bill or address it in another place. On that basis, and with the assurance that we are taking these representations very seriously indeed, we hope that the amendments will not be pressed.
§ Lord Northbourne
My Lords, I am most grateful to the noble Lord for that very encouraging reply. However, I do not think that "residents" is the same as "parents". Of course some of the residents are parents, but it is parents in their role as parents that is so important. All the social services in the world cannot do what parents can do. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 34 to 36 not moved.]
§ Lord Davies of Oldham
My Lords, I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.