HL Deb 16 January 2003 vol 643 cc301-45
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone)

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

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

On Question, Motion agreed to.

House in Committee accordingly.


Clause 22 [Grant or rejection of application]:

Lord Brooke of Sutton Mandeville moved Amendment No. 197: Page 13, line 34, leave out "forthwith" and insert "as soon as is reasonably practicable

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 200, 224, 226, 311 and 313.

This is thought to be the final day in Committee on this Bill. The amendment—inserting, as soon as is reasonably practicable".

instead of "forthwith"—seems to be a good text for the day's debates. I shall be moving amendments in 19 other groupings, and, although it is not indicated on the Marshalled List, I have advised the Government Whips' Office that I intend to speak briefly on Clause 191 stand part. I give the Minister an assurance from the beginning that I shall seek to be as brief as possible. If in 20 groupings I err at least once, that will be the exception that proves the rule.

In subsections (1) and (3) of Clause 22, a requirement is made of the licensing authority that, once an application has been determined, it must issue the licence and a notice of reasons for granting it under subsection (1), or a notice of reasons for refusal under subsection (3); and this must be done "forthwith". These notices must go to the applicant, to, any person who made relevant representations", and to the chief officer of police in the area.

"Forthwith" has an ordinary meaning—namely, "at once, without delay", to take the definition in the Oxford English Dictionary. It may not be practicable in all cases to issue the required notices immediately. The drafting of reasons will not necessarily be able to take place instantaneously. These amendments seek to insert the more sensible and reasonable requirement that the licensing authority shall carry out these duties, as soon as is reasonably practicable".

The other five amendments that I shall move in this group effectively say the same thing. I beg to move.

Baroness Buscombe

I rise to speak to Amendments Nos. 198 and 201.

Throughout the Bill significant demands are placed on licensing authorities in respect of the time-scales with which they have to comply. The most demanding, perhaps, relates to the transitional arrangements proposed in the Bill, which will be dealt with later.

Clause 22 provides that, when granting a licence under Clause 18, a licensing authority must, forthwith … give a notice to that effect to … the applicant … any person who made relevant representations … and … to the chief officer of police for the police area", and, issue the applicant with the licence and a summary of it". "Forthwith" means "immediately". In some cases it will simply be impossible for licensing authorities to comply with the requirement. Let us take, for example, a contested application which is heard by a licensing sub-committee and—as is quite common when local authorities are dealing with public entertainment licences—the hearing goes on until late at night or even into the early hours of the morning. If the licensing sub-committee grants the licence, subject to conditions that arise as a result of objections raised during the hearing, it may not be practicable to draft the notice immediately together with the reasons and, most importantly, the licence itself.

The amendment would enable a local authority to have two working days in which to prepare the necessary documents—which in a complicated and controversial case may need special care and may take a great deal of time to prepare. The licensing authority should not feel that it is being rushed into drafting its reasons for granting a licence in such cases, particularly as there will now be a right of appeal against that decision. I support the amendment.

Baroness Blackstone

I am grateful to the noble Lord, Lord Brooke, for telling the Committee that he will attempt to be as brief as possible in moving all the amendments standing in his name. I am grateful also to the noble Baroness, Lady Buscombe, for being brief and to the point on this grouping.

Many noble Lords—particularly the noble Lord, Lord Hodgson—will know that some in the industry fear that the transfer of licensing functions to local authorities will mean a great deal of delay, and for obvious reasons the industry wants to avoid that.

The Government do not consider those concerns to be justified, although we can understand the reasons for them. That is why we have sought to build benefits into the Bill for the industry through "light touch" regulation to balance the additional safeguards that are put in place in the public interest.

We sought to reassure the industry that applications for licences will be dealt with promptly and efficiently. The use of the word "forthwith" in Clauses 22 and 35 reflects that aim. It is there to emphasise that there should be no delay in notifying applicants when a matter has been determined. We should not interpret that to mean that, when there is a hearing late in the evening, the licensing authority then has to tell people in the middle of the night. That would be absurd, and I should like to give that reassurance.

One of the anxieties about local authorities that representatives of the industry have expressed to us is the propensity of some of them to use delay to frustrate applications. I know that the noble Lord, Lord Brooke, does not wish to make that possible by the insertion of the words, as soon as is reasonably practicable". Our preference is to emphasise speed and to send a clear message, particularly as the effect of the determination will impact on the rights and obligations of the applicant for a premises licence and on the assumption of responsibilities by that person. In respect of a determination on an application for a variation, it will again have an important impact. The Committee should remember that an application for variation may have been unchallenged and no hearing involved. Certainly there can be no justification for delay in such circumstances.

In the light of the reassurances that I have given and the reasons behind the Government's belief that the word "forthwith" will be helpful, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Brooke of Sutton Mandeville

I follow what the Minister said and I understand the logic behind the original wording—the apprehensions of the licensed trade that some local authorities have a record of not being as prompt as they might be—but the disadvantage of staying with "forthwith" is that it comes down totally on the side of the licensed trade. There may be circumstances where, as soon as is reasonably practicable", provides a much better description of the speed at which a local authority can move.

It will be no good my asking the Minister whether, if the licensed trade came to the department to complain that decisions were not being delivered "forthwith", the local authority could say in response, "We did it as soon as reasonably practicable", but I hope the Minister will recognise that there is a genuine problem.

Although I am willing to withdraw the amendment on this occasion, I shall wish to take advice on how happy those on the other side of the equation—the local authorities—are about being stuck with the word "forthwith", which means "extremely prompt". I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 198 not moved.]

11.15 a.m.

Lord Brooke of Sutton Mandeville moved Amendment No. 199: Page 13, line 41, at end insert—

  1. (a)until the end of the period given for appealing against the decision; or
  2. (b) if the decision is appealed against, until the appeal is disposed of."

The noble Lord said: In moving Amendment No. 199, I shall speak also to Amendment No. 312, which repeats the wording of Amendment No. 199 and is effectively consequential upon it.

The existing clause requires the licensing authority to issue a licence to the applicant forthwith, as we confirmed during the debate on the previous group of amendments. That will raise a technical issue if there is an appeal because once the licence is granted a magistrate, on appeal, cannot quash the grant. The only remedy for an appellant would be to seek judicial review to quash the grant and then to pursue the appeal. That would be unjust and onerous on appellants.

The effect of the amendment is to require the licensing authority not to grant a licence until after all appeal procedures are exhausted. The wording mirrors the wording provided for appellants when licences are reviewed. I beg to move.

Baroness Blackstone

The amendments would again introduce unacceptable delays into the process by attempting to prevent decisions of the licensing authority coming into effect until either the period for making an appeal comes to an end or until any appeal made is disposed of.

Let us examine the process for determining applications. An applicant submits an application with the number of documents needed to accompany it—including an operating schedule which sets out, among other things, which licensable activities he or she wishes to carry on at the premises, or the qualifying club activities that the club wishes to carry on and when, together with an explanation of the steps he or she or the club proposes to take to promote the licensing objectives.

The application is advertised so that interested parties can make relevant representations. It is notified to responsible authorities so that they can comment on the application. Where no representations are made on the application, the licensing authority must grant it, subject only to conditions consistent with the operating schedule.

So, as a simple example, where an operating schedule proposed that a local pub sell alcohol until midnight on Fridays and Saturdays, and no representations were made, the premises licence would reflect the opening hours set out in the operating schedule. In such circumstances, any delay in the licence taking effect would be unnecessary.

Even where relevant representations were made and a hearing convened to consider them and the licence or certificate granted subject to conditions relating to the licensing objectives, it would be inappropriate to delay the coming into effect of the authorisation.

Clauses 22 and 75 concern the procedure following a determination, not the determination itself, and I wonder whether the amendments have a place in those clauses. However, aside from that, the general position in law is that where an appeal against a decision is made, the decision stands and is effective until overturned.

The licensing system must be efficient and effective and provide certainty. The net effect of the delay which these amendments would impose on the industry would be considerable. No licence or certificate would come into effect for at least 21 days—the appeal period set out in Schedule 5—and some businesses could be shut down for weeks pending the hearing of appeals. It is not only an applicant who has a right of appeal against a decision of the licensing authority, but anyone who has made relevant representations. The applicant may be very happy with a decision and want to go about his business as quickly as possible. Why should he be denied that merely to ascertain whether someone may want to appeal? Why should we depart from the normal position in English law in relation to appeals?

I understand the sentiment behind the amendment—it is borne of a wish on the part of licensing authorities to offer even more protection to local residents than the Bill already provides—but I believe that it is misguided and would place an unnecessary regulatory burden on the industry. Given the existing protections in the Bill, which the Government consider are more than sufficient, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Brooke of Sutton Mandeville

I thank the Minister for her extensive explanation of the rationale for the present position of the Bill. I think she will acknowledge that there is a concern among residents, which site might think unrealistic, that the scales are weighted against them throughout this process. The thought that they might have to go to judicial review for their appeal against a decision to succeed—because the magistrate could not take away a licence once it had been granted—would necessarily feed the psychosis that they are a beleaguered and besieged community.

Although I am content to beg leave to withdraw the amendment, I ask the Minister to consider the combined effect of all the provisions in this Bill on residential communities.

Amendment, by leave, withdrawn.

[Amendments Nos. 200 to 202 not moved.]

Clause 22 agreed to.

Clause 23 [Form of licence and summary]:

[Amendment No. 203 not moved.]

Clause 23 agreed to.

Clauses 24 to 26 agreed to.

Clause 27 [Surrender of premises licence]

Lord Brooke of Sutton Mandeville moved Amendment No. 204: Page 15. line 32, leave out "may" and insert "must

The noble Lord said: This clause deals with circumstances in which the licensee wishes to surrender his licence. As the Bill is drafted, if the holder of a premises licence wishes to surrender it, he may give the relevant licensing authority notice to that effect. That appears to leave open to the licence holder the option of not giving notice. As a consequence, the important records of the number and types of licence operating in any area will be inaccurate until the licensing authority discovers the change by another means. This amendment is designed to make it clear that the only way in which a premises licence can validly be surrendered is by giving the relevant licensing authority notice. If there is a single conduit, the statistics, by definition, will be up to date and comprehensive. I beg to move.

Lord Redesdale

I support the gist of the amendment, but I will speak to it at greater length in debating the next group of amendments.

Baroness Blackstone

I accept entirely that it is important that we have proper, accurate, valid and reliable licensing statistics. However, the amendment is based on the mistaken assumption that a licence holder may surrender his or her licence without notifying the licensing authority. I assure the noble Lords, Lord Brooke of Sutton Mandeville and Lord Redesdale, that, if a licence holder wants to surrender the licence but does not notify the licensing authority, it is not surrendered and his or her obligations remain the same. For that reason, the amendment is unnecessary and I hope that the noble Lord feels able to withdraw it.

Lord Brooke of Sutton Mandeville

A profound curiosity holds me in suspense until the noble Lord, Lord Redesdale, in speaking to the next group of amendments, says what he might have said about this one. But I am prepared to live with the Minister's response while continuing to look forward with anticipation to the observations of the noble Lord, Lord Redesdale. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Redesdale moved Amendment No. 205: Page 15, line 32, leave out from "he" to end of line 33 and insert "shall give the relevant licensing authority and any person who has registered an interest in the premises under section 32(5A) a notice to that effect, and the licensing authority shall not accept such surrender unless satisfied that the person so registered duly consents

The noble Lord said: I wish to speak also to Amendments Nos. 217 and 246, which follow This amendment. The purpose of this amendment is to provide that, where a licensee wishes to surrender his license, he shall give the relevant licensing authority and any person who has registered an interest in the premises under Section 32(5A) a notice to that effect, and the licensing authority shall not accept such surrender unless satisfied that the person so registered duly consents".

To sate the curiosity of the noble Lord, Lord Brooke, these amendments deal with notifying the licensing authority. But they go one step further in that they would also ensure that those with a registered interest in a licensed premises would also be notified.

I declare an interest as the owner of the Redesdale Arms pub in Northumberland on the A68. It is a particularly fine hostelry of note and distinction, with fine food and fare. Having said that, I would be directly affected if the tenant decided to surrender the licence without notifying me as the landlord. I doubt that it would happen in my case, but it could do where, because of financial or social problems, the licensee disappears in the middle of the night. For example, the licensee of one local pub disappeared in the middle of the night with the dance floor. That would affect the provision of music and dance, which is dealt with in other parts of the Bill.

If, for malicious reasons, the licensee surrendered a licence without informing the landlord or company with a registered interest, and they were not made aware when the licensing authority accepted the surrender, they would have to reapply for the licence. That could lead to financial redress and consequences. There would be further implications if there were a problem in reapplying for the licence. A licence would not be granted without questions being asked.

I hope that the Minister will accept this amendment or give reasons why it could not be accepted. One of my concerns is that, if it is not accepted and the Bill becomes law in its present state, the licensing authority or the Government will be challenged in the European Court of Human Rights on grounds that someone with a registered interest would be financially disadvantaged by the Bill. I beg to move.

Lord Hodgson of Astley Abbotts

I support the noble Lord, Lord Redesdale, in this. I declare an interest: as noble Lords who have sat through previous proceedings will know, I am a director of a brewery and an operator of 1,500 pubs. Where one has tenants, one's interests will be affected if they exercise malice aforethought—and sometimes malice is aforethought, as the noble Lord, Lord Redesdale, pointed out. There is an interest here which needs to be protected as the noble Lord suggests.

What is the Government's thinking on long leases, which now tend to run for 21 years? They provide greater security for the brewery and the tenant, which is in everyone's interest. Who will be the premises licence holder: the owner of the premises—the brewery—or the tenant with a 21-year licence? We have not yet tackled that issue. I would be interested to hear the Government's thinking on it in replying to the amendment of the noble Lord, Lord Redesdale.

Baroness Buscombe

I support Amendments Nos. 205, 217 and 246, to which my name and that of my noble friend Lord Luke have been added. I feel that I am at a distinct disadvantage as I am unable to say that I own or manage a pub or that I am a director. Perhaps that shows that in supporting these amendments I am entirely impartial.

I refer to the surrender of premises licences. As has been said, Amendment No. 205 would provide protection for any party with a registered interest in the property against any unscrupulous behaviour on the part of the personal licensee, particularly with regard to managed or leased pubs.

I turn to Amendment No. 217. An owning company will often be able to be in a position to promote the licensing objectives through its contractual agreement with the tenant or lessee. Notification of breaches of the premises licence would allow the registered party to enforce the terms of such an agreement to the effect that the terms and conditions of the premises licence must be complied with. The registered interest would want to protect its rights in the property whose value is linked to the possession of the premises licence. That situation is particularly prevalent in the pub sector where many thousands of pubs are owned by pub companies or brewers, and leased to tenants.

A right to register such interests already exists in Section 32(2) of the Licensing Act 1964. This needs to be preserved in the proposed legislation and linked into all sections where the investment of the party with the superior interest is threatened by the actions of the designated premises supervisor, the premises owner or other circumstance. The ability to register an interest will enable the owning company to secure its reversionary interest in the event of the demise of the tenant. That can be useful to both parties in the event of death or incapacity. It is also beneficial where a tenant absconds leaving the business adrift. The owning company by virtue of its interest can step in, appoint a personal licence holder and maintain the business quickly and efficiently.

I turn to Amendment No. 246. The ability to register an interest will enable the owning company—subject to the contractual relationship between the parties—to protect its reversionary interest in the event of the demise of the tenant. That again can be useful to both parties in the event of death or incapacity. It is also beneficial where a tenant absconds leaving the business adrift. The owning company by virtue of its interest can step in, appoint a personal licence holder and maintain the business quickly and efficiently.

11.30 a.m.

Baroness Blackstone

Like the noble Baroness, Lady Buscombe, I have no interest to declare. I do not own a pub or even a chain of pubs. I shall also try to be objective but I shall reach the opposite conclusion to the noble Baroness, which just shows that objectivity does not always lead to the same answers. I look forward to having half a pint at the Redesdale Arms at some stage with the noble Lord, Lord Redesdale.

This Bill has been developed in close consultation with the industry as well as many other stakeholders. We are well aware of industry concerns, particularly about situations where premises are owned by one company but operated by another or by a tenant, but I believe that the Bill contains adequate measures. I say to the noble Lord, Lord Hodgson, that it will, of course, be open to pub owning companies to hold the premises licence themselves, and designate tenants or other managers as the premises supervisor. Either the landlord or the tenant can hold the licence. The Bill does not include provisions for registered interests. It concerns licensable activities, not the relationship between landlords and their tenants. That relationship is set out in a tenancy agreement. That is the right way to deal with that matter.

The Bill provides that each licensing authority must keep a register recording all the authorisations it issues and notices and applications it receives. These are listed in Schedule 3. The information contained on the register will be available for inspection by anyone 'who wishes to see it. To require licensing authorities to inform anyone with an interest of any application or notice, as Amendment No. 217 suggests, would greatly increase both the costs and the complexity of the system. The Bill provides protection for those with a commercial interest and others employed there. For example, following the death, insolvency or mental incapacity of a premises licence holder, an interim authority notice can be given, within seven days, by a personal representative of the former holder or someone with power of attorney. The effect of such a notice would be to reinstate the licence for two months, during which time a transfer application could be made. Giving notice would be a simple matter of dropping a note to the licensing authority to let it know.

We must not forget that the underlying purpose of the Bill is to simplify and streamline the current system, which is too complex and unwieldy. To allow anyone with any interest in a premises to apply for an interim authority notice could open the door to long and possibly acrimonious contests, which we want to avoid. To require a premises licence holder to have the consent of anyone with a registered interest before he can surrender a licence, as Amendment No. 205 suggests. would reduce the flexibility the Bill seeks to achieve, and make the system unnecessarily complicated. Similar provisions are made under existing legislation which, apparently, work perfectly well.

The Bill also provides a simple and quick procedure for the transfer of licences. Applications can even be given immediate effect, pending police consideration, or, if the police object on the grounds of the crime prevention objective, pending the determination of the licensing authority. Applicants must show that they have the consent of the holder or that all reasonable steps have been taken to secure it. This would cover circumstances in which there may be a dispute between a pub-operating company and a tenant, for example. The Bill sets out a simple system for licensing premises which sell alcohol or provide public entertainment or late-night refreshment that is simpler and cheaper than the current system and is more transparent and more consistent. These amendments would undermine that.

A licence brings with it duties and responsibilities enforceable at law. An individual must have the right to give up that responsibility by giving appropriate notice to the licensing authority. The licence holder's responsibility to the owner is a matter for his or her contract with them, as I think I have made clear. If they require notice, it should be a provision of that contract. If a tenant is in dispute with the owner or lessee of the property, that is not a matter for licensing law. A licence holder's responsibility in respect of his licence is to the licensing authority. The industry cannot expect to have it both ways. By requiring a tenant to take out the premises licence, it can distance itself from the consequences of breaches. But at the same time it seems to want to preserve a degree of control over its interests. If it does this, it must accept that it must use non-licensing procedures to ensure its interests. In the light of that explanation, I very much hope that the amendments can be withdrawn.

Lord Redesdale

Before the Minister sits down, I seek some clarity. The purpose of the amendment we are discussing is to introduce a safeguard and some form of security. The Minister said that a pub company could be a designated premises supervisor. I have no difficulty with that and consider that it is a right and proper safeguard. However, tens of thousands of pubs throughout the country are run by small operators. In such cases a licensing company would not undertake the onerous role of premises supervisor. A landlord with one or two pubs probably would not have the knowledge to fulfil that function. Do the Government consider that this is simply a matter of a change in the lease arrangement? That might have financial consequences if the pub lease were sold on. If that is the case, is the Minister suggesting that the landlord—if he constitutes the landlord of a single pub rather than a company—should take on the role of premises supervisor? Do the Government believe that that would be the best way forward?

Baroness Blackstone

I believe that the answer to that question is "Yes", in the case of the Redesdale Arms, for example. However, I want to emphasise what I have already said. It is not for the Licensing Bill to plug deficiencies in contractual relationships between the owner and tenant of the premises, when licensable activities will be carried out. That is my main point.

Lord Hodgson of Astley Abbotts

Will the Minister clarify this matter? I understand that it is not for the Licensing Bill to plug deficiencies in the Landlord and Tenant Act. But what we are talking about here, and what the noble Lord, Lord Redesdale, is talking about, is the additional responsibilities that the Bill imposes on landlords and tenants, which clearly cannot be covered by the Landlord and Tenant Act because it is not the Licensing Bill. I support the noble Lord's point about the potential gap between the two pieces of legislation. The Landlord and Tenant Act will not cover the gap because it does not deal with licensing matters, and the Licensing Bill will not cover the gap because it does not deal with landlord and tenant matters. The Minister has not yet filled that hole.

Baroness Blackstone

I find it difficult to answer the question because I do not know enough about the Landlord and Tenant Act. Perhaps the noble Lord, Lord Hodgson, could write to me on that matter, and I shall write to him and to the noble Lord, Lord Redesdale.

Lord Redesdale

I thank the Minister for that response. The Bill creates some of the problems that the amendment is trying to solve. These difficulties do not exist under the present arrangements—so to say that the Bill will not create problems is somewhat disingenuous. However, I take on board what the Minister said and look forward to receiving a letter. Depending on that letter, we may return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clause 28 [Application for a provisional statement where premises being built, etc.]:

Baroness Buscombe moved Amendment No. 206: Page 16, line 17, leave out "of works" and insert "indicating the work to be undertaken to meet any requirements of the licensing authority together with proof of the granting of any planning permission in respect of the work, if such permission is required under the Town and Country Planning Act 1990 (c. 8)

The noble Baroness said: In speaking to Amendment No. 206, I shall also speak to Amendments Nos. 208 and 210. The amendments relate to Clause 28, on applications for a provisional statement where premises are being built. The clause also enables an applicant to obtain a conditional statement that would ultimately be turned into a full licence when certain conditions relating to the construction of works and other matters are met by the applicant. It is common for the procedure to be used so as to ensure that a developer does not spend an enormous amount of money on new licensed premises in the hope that he will be able to obtain a licence when he has completed them. It gives him the assurance that he will.

There is no objection to the idea of provisional statements in principle, as that is how local authorities operate already under their public entertainment licensing regime. They are concerned to ensure that they have enough detail to make a decision on whether the provisional statement should be issued. Under the clause, the applicant has to provide a "schedule of works", including, a statement made by or on behalf of the applicant including particulars of the premises to which the application relates and of the licensable activities for which the premises are to be used … plans of the work being or about to be done at the premises, and … such other information as may be prescribed"— in other words, prescribed by regulations made by the Secretary of State.

Amendment No. 206 would ensure that the licensing authority has much greater influence over the type of information that it needs to make its decision. It would also ensure that the package sent to the licensing authority included proof that any planning permission required for the work was provided. It should be pointed out that the requirement for proof of planning permission should extend not only to planning permission for any development proposed but also for change of use—from shop to food and drink use, for example.

I turn to Amendment No. 208. Clause 28(7) defines what is meant by "satisfactorily completed" in relation to works that are intended to be carried out in pursuance of a provisional statement. It provides that "satisfactorily completed" means, being completed in a manner which substantially complies with the schedule of works accompanying the application".

It is unclear what is meant by "substantially complies". It is akin to wording like, "to a significant degree", which is used in the Local Government (Miscellaneous Provisions) Act 1982 in the definition of a sex shop. Premises are a sex shop if they consist to a significant degree of the selling of sex articles. In a very helpful High Court judgment, it was decided that "significant" means "not insignificant". That is very helpful. Licensing authorities could find themselves at the end of a similar judgment in relation to what is meant by "substantial".

As an alternative, the amendment once again puts the ball firmly in the court of the licensing authority, as it currently lies in respect of public entertainment licensing, so that the works have to be completed to its satisfaction and the satisfaction of the fire authority and the local authority in so far as it deals with matters such as pollution of the environment.

Amendment No. 210 is a simple amendment to ensure that an application for a provisional statement is in the correct form before the substantive provisions of Clause 30 take effect. I beg to move.

11.45 a.m

Lord Brooke of Sutton Mandeville

I wish to speak to Amendment No. 207. The Bill sensibly provides that when premises need building work to be carried out before they can receive a full licence to operate, they may apply for a provisional licence. In the event that the licensing authority grants a provisional licence, it would allow the operator to carry out investment in the building in the certain knowledge that a full licence will subsequently be granted when the works have been carried out to the satisfaction of the relevant technical officer and the licensing authority.

The Bill makes no requirement for the application for the provisional licence to be accompanied by an operating schedule showing how the premises will operate. All applications for a full licence must be accompanied by an operating schedule, and the amendment simply makes the same requirement for an application for a provisional licence. When a provisional licence has been issued under Clause 30, there is little scope for further representations—I refer to Clause 31.

In determining the application for a provisional statement, the licensing authority must consider whether, on the work being satisfactorily completed, it will grant a premises licence in the form prescribed upon a premises licence application. Accordingly, it must be when the applicant applies for a provisional statement that he is required to provide the operating schedule.

Lord Redesdale

I wish to speak to Amendments Nos. 213A, 213B and 213C, which are in my name and that of my noble friend Lady Harris of Richmond.

The amendments are simply probing. We question the Government on the need for including "the relevant person". Paragraphs (a) and (b) of Clause 31(3) set out the conditions under which the "relevant person" obligations apply. We challenge the Government to say whether they really believe it necessary to include the "relevant person" in this part of the Bill.

The Earl of Onslow

I had better first declare an interest, in that I have a planning consent for a health and fitness club on my land. As Members of the Committee know, I shall personally never go near the club, but that is not the point.

It seems rather odd that when a planning authority gives planning consent for a pub to be built, its other arm can say that the pub cannot have a licence. Does not the fact that a planning authority gives consent for a new public house to be built mean that it will automatically get a licence?

Lord Avebury

Perhaps I can help the noble Earl, Lord Onslow. We are dealing with the very broad A3 class of use, which can embrace ordinary restaurants or cafés and extend all the way up to a 1,500 person nightclub. The subject of converting from one of those uses to another has come under intensive scrutiny, as the noble Baroness will be aware.

The Office of the Deputy Prime Minister recently published a report on planning for leisure and tourism, which featured eight case studies dealing extensively with the way in which planning permissions already granted under A3 for purposes not to do with entertainment and the sale of alcohol were extended automatically because of the breadth of use in that class. There is nothing in the Bill to deal with that problem. This clause, which deals with works that may have to be carried out to comply with licensing requirements, seems to be the only place in which it is possible to raise the issue.

Perhaps the noble Baroness will explain the thinking that the Government have developed as a result of the ODPM's leisure case studies and whether they believe that the A3 class of use should be retained so that an event such as that described by the noble Earl, Lord Onslow, can occur. With the carrying out of works under this clause, an ordinary café or restaurant could become a 1,500 person all-night drinking establishment without any change of the use of class. We are missing a fundamental point in the Bill, which the noble Earl, Lord Onslow, has put his finger on.

Lord Hodgson of Astley Abbotts

My Amendment No. 213D is in this group. The issue is hugely complex. I had the pleasure of spending Tuesday touring about seven pubs in the Derby and Burton area. When you meet the tenants, licensees or free house operators, you need the Minister's team of civil servants standing behind you to answer all their questions. There is a huge job of explaining and winning hearts and minds to be done. They have hundreds of questions that, even with the time that we have spent here, I could not answer. Those questions will need to be answered. The guidance is crucial and will need to be very detailed.

This is a probing amendment to Clause 31. It deals with what I call the second bite at the cherry—an ability to make representations following the grant of a provisional statement. This will be particularly serious where new pubs are being developed. I should like to detain the Committee briefly on the methodology. A developer who builds a housing estate will decide that he wishes to have a family pub on one corner. It will be a community pub, not one that is open 24 hours a clay. Arrangements will have to be made with the developer. Planning permission will have to be gained, which obviously requires architects and a great deal of negotiation with the local authority. The building will then have to be put up, fitted out and opened. That will amount to £2 million or £3 million for a good quality, modern pub that will be attractive on a modern housing estate.

The present position is that if a provisional licence is granted, an automatic final licence will subsequently be granted so long as the finished building is as planned and the licensee is fit and proper. Both those conditions are entirely fair. It is not clear to me that Clause 31 as it stands will give that certainty. It contains phrases such as "material change in circumstances" and, to the area in the vicinity of". That gives rise to considerable opportunity for legal argument on interpretation.

The worry is not just that the application will be refused. That is probably unlikely. However, the conditions attached to it may be changed. The original development will have been planned on certain opening hours, but as a result of the second bite of the cherry they might be reduced, affecting the economic viability of the scheme. Equally importantly, bearing in mind that the operator has £2.5 million or £3 million of investment lying idle, there is a danger of considerable delay in the opening as the legal arguments are worked through.

I seek the Government's reassurance that my fears are groundless. The Explanatory Notes on Clause 31 give the example that, a person may have been confined to hospital during the period in which representations could have been made". Such people will have a chance of what I call a second bite at the cherry. Would that apply to someone who had been on a prolonged holiday? These issues arouse strong feelings. I do not want to be paranoid, but those who feel that there should not be a pub—they are entitled to express those views and should do so—may find someone who would fulfil the conditions set out in the Explanatory Notes, someone who had been on holiday or in hospital, and use that person to open up the issue of the grant again. Of course residents' wishes must be taken into account, but that will already happen under the Bill. It cannot go on happening. There must be some point at which the potential operator of the pub can draw the line and say that the local authority has made the decision and the development must now happen. I emphasise that mine is a probing amendment. It would remove "without reasonable excuse" as a basis for us to have a debate and hear the Government's views.

The noble Lord, Lord McIntosh, may hope to tempt me to talk against my Front Bench on the lead amendment. Having considered the issue, I am not inclined to do so, but no doubt he will tell me why I should have done so.

The Earl of Onslow

My noble friend has brought something sharply into focus in my mind. If a planning consent is given to the pub in the residential area to which my noble friend alludes, presumably the local authority could put on a 106 agreement, which says that the pub will not be open after 11 o'clock, because that is what the residents require. Will a 106 agreement be overridden by the licensing laws? If so, should it?

Lord McIntosh of Haringey

I realise that the noble Lord, Lord Hodgson, did not want to intervene against his Front Bench, but he did so very effectively; he is just too modest to say so. Many of the amendments in the group would introduce not just additional bureaucracy but additional uncertainty for those who are thinking of opening pubs or building, developing or altering premises to be used for licensable activities.

Let me explain what Clauses 28, 30 and 31 do. Clause 28 provides that where a premises is being or is about to be constructed, extended or altered for use for licensable activities, a person interested in the premises may apply to the licensing authority for a provisional statement. He has to be 18 or over. A provisional statement is issued under Clause 30 and provides those engaged in, or about to be engaged in, construction or development work at premises to be used for licensable activities with some assurance about the potential trading conditions. I hope that that is what everyone wants. Clearly, developers or property owners who want to alter or extend premises may be reluctant to invest their money—the noble Lord, Lord Hodgson, explained that the amounts could be substantial—without an assurance that they can carry out their intended business. An application for a provisional statement must be accompanied by a schedule of works, which includes a statement of the particulars of the premises and the licensable activities for which the premises are to be used. It must also include plans of the work being carried out and such other information as may be prescribed.

Amendment No. 206 would provide that instead of a schedule of works, the application for a provisional statement would indicate the work to be undertaken to meet the requirements of the licensing authority and would have to prove that, where appropriate, planning permission had been obtained. That would merely duplicate the provisions of the planning system. The licensing authority is concerned only with licensing activities. Of course, local authorities have other functions, including planning, but we must restrict the Bill to the needs of licensing activities. It is too long already, and would get much longer and more complicated, because it would intermesh with planning and other law.

There is the same sort of duplication in Amendment No. 208. It would require an applicant for a provisional statement to complete the works for which the statement was made to the satisfaction of the licensing authority, the fire authority and the local authority in respect of preventing the risk of pollution of the environment and harm to human health. Those issues are all dealt with separately under building regulations. The amendment would duplicate work not only for the applicant, but for the authorities concerned. Also, the amendment would introduce a subjective test where there is currently an objective test.


Lord Avebury

Is the noble Lord aware that one reason for anxiety about the Bill is that it does not intermesh with the planning legislation? I thought that we had joined-up government.

Lord McIntosh of Haringey

I withdraw the word "intermesh". I am saying that there is perfectly good planning legislation. Where it is necessary for planning law to be taken into account in order to provide a proper regime for licensing, the Bill is concerned with that. It is concerned in a way that such matters were not related before. To duplicate the planning regime is simply unnecessary. It is a burden on applicants, on those who undertake what is agreed to be a legal and necessary activity, and on local authorities.

The issue of representations is very important. The schedule of works must contain information about the licensable activities to be carried out at the premises, so that interested parties and responsible authorities—that includes local residents—can make representations if they wish to. We are discussing cases where work is being or will be carried out. In many cases, the person carrying out the work will not be the same person who will carry out the licensable activities. Therefore, it is not possible at that stage to provide the level of detail required for the operating schedule that must accompany an application for a premises licence. That is why we resist the idea of having an operating schedule at this stage.

There may be a concern that licensable activities that would eventually be carried out would not be the same as those described in the schedule of works. I can assure the Committee that that would not happen without further representations being heard by the licensing authority on the application for a premises licence by interested parties and responsible authorities. Again, that includes local residents.

Under Clause 31, representations about applications for premises licences where a provisional statement has been issued are excluded if the application is in the same form as the licence described in the application for the provisional statement and the work described in the schedule of works has been satisfactorily completed. That covers the point made by the noble Lord, Lord Hodgson, about the second bite at the cherry. However, to come back to the point made by the noble Lord, Lord Brooke, which also relates to that made by the noble Lord, Lord Redesdale, for representations to be excluded, the relevant person must have been able to make the same or substantially the same representations when the provisional statement was applied for and failed to do so without reasonable excuse.

It will always be difficult to define what is a reasonable excuse. In the end, the courts will have to define it, but I take the point that the noble Lord, Lord Hodgson, made about being in hospital or on holiday. The important factor is that there must have been no material change in the circumstances relating to the premises or the vicinity of the premises since the statement was issued. It is only if something has changed that the situation arises.

There is a typographical error in Clause 31(2). The reference to Section 18(6)(c) should be to Section 18(6)(d). The intention is that all relevant representations are excluded, not only those about the identity of the premises supervisor. If the Public Bill Office tells us that that has to be corrected by an amendment, we will table one on Report.

The effect of all the provisions is that further representations can be made if the premises licence application is not in the same form as that in the provisional statement, the work has not been satisfactorily completed, or there has been material change in the circumstances relating to the premises or their vicinity.

Let us take an example involving the argument. A builder may wish to construct a new nightclub and applies for a provisional statement setting out that the club will be open between eight o'clock and two o'clock for six days a week and provide music and dancing. The operator who takes a lease on the club may decide that he wants to stay open until four o'clock on Saturday nights and provide hot food between eleven and one. The builder could not have predicted that, but the information in the premises licence application would be different from that in the provisional statement application. Therefore, further representations could be made by responsible authorities or interested parties. Everyone, including applicants, would agree that that was fair.

Other amendments in the group would exclude all representations when a premises licence application was made following the granting of a provisional licence. I do not think that that is fair.

Lord Hodgson of Astley Abbotts

What the Minister is saying is interesting. In the example that he gave, which was very helpful, he said that there was no change between the builder and the nightclub operator and no chance of further representations. I do not read the Explanatory Notes to Clause 31 as saying that. I am delighted to have his assurance, but the Explanatory Notes do not say that a change is required to trigger the second bite at the cherry so far as I read them.

Lord McIntosh of Haringey

That is what the Bill says. There is the correction to be made because of the typographical error, which may be relevant, in which case we will almost certainly have to table an amendment on Report.

Behind all the provisions, the provisional statement arrangements exist to allow the industry a degree of certainty when building or developing premises. We all agree that that is reasonable. However, providing that certainty should not prevent representations being made where the information in the application is substantially different from that in the provisional statement, or where there has been material change in the circumstances. It must, for instance, be open to the police to object to the identity of a particular premises supervisor if they have some history of involvement with illegal drugs and, since the provisional statement was made, the area around the premise has become known for drug dealing.

Amendment No. 210 would provide that the provisions of Clause 30 applied only where the provisional statement application was made in accordance with Clause 28. However, subsection (8) already states clearly that for the purpose of the clause an application is only a "provisional statement application" if it is made in accordance with Clause 28. The amendment is therefore unnecessary.

I shall deal with the specific points that have been made. The issue of whether something substantially complies will be for the guidance. Guidance to the licensing authorities will assist them in interpretation of the terms used in the Bill. Again, one cannot be totally precise. If there is dispute about something, the courts might have to decide on it.

I thought that my noble friend Lady Blackstone had already answered the point made by the noble Lord, Lord Avebury. In any case, nightclubs are in the D2 class and cannot be converted from the A3 class. The Office of the Deputy Prime Minister is reviewing the A3 use class and will address the points that he raised. I think that the noble Lord has already been told that.

Lord Avebury

I particularly refer the Minister to the case study on Ealing. It found that landlords or proprietors could very easily convert from other uses to intensive drinking, and that the planning law did not allow for objections to be made in those circumstances. With regard to this clause, when someone applies to convert premises for intensive drinking from some other use, the person concerned will be able to say, "We have already got planning permission—we have A3 use—and intensive drinking should therefore be allowed". That is what happened in Ealing.

Lord McIntosh of Haringey

First, as I said, the A3 class is being reviewed. Secondly, the point raised perfectly validly by the noble Lord, Lord Avebury, is an issue for licensing law and involves the Bill; it is not for the Deputy Prime Minister. I believe that we have got the balance right and provided the assurance that developers and people spending money on premises need; that is, that provided that they stick to what they said at the beginning so far as they can, they will get their premises licence. At the same time, we have provided for representations when there are significant changes or good reasons to do so.

The Earl of Onslow

Will the noble Lord answer the question: does planning for a public house or entertainment area automatically mean that one is getting licensing approval? Secondly, can a 106 agreement obviate the need through the planning system to keep something open for 24 hours?

Lord McIntosh of Haringey

Just as the licensing regime that we are setting up in the Bill does not duplicate the work of the planning system, although it takes account of it, the planning system does not rule out the application of the licensing regime. Planning permission does not bring with it the certainty of a licence. A licence has to be applied for; that is what the whole Bill is about. I do not know offhand what a Section 106 agreement is, but I shall write to the noble Earl, Lord Onslow, about it.

The Earl of Onslow

The 106 agreement is extremely important. It adds a condition to a planning consent—for example, in my case, that a golf course is liable to be a pay-and-play golf course, not a membership golf course. Several golf clubs in the South of England are not allowed, through their 106 agreements, to use their club premises for outside entertainment; in other words, they cannot have functions there because local people objected. That involves a planning consent restraint. If that restraint is kept, that is all well and good, but if it is not, it could be used to drive a hole through the entire Bill. It is important that the issue is addressed in the Chamber rather than merely in a letter to me. I accept that the issue has tumbled into my mind only this afternoon, but I genuinely believe that it is important.

Lord McIntosh of Haringey

Let me set out the position as best I can. No planning permission, either positive or negative in the sense of a restraint, gives licensing permission to anything. In order to carry out licensable activities, one has to have a licence. If one has a planning permission that states that one cannot put on licensable activities such as entertainments, one must appeal against the planning regime and obtain a licence for it.

12.15 p.m.

Baroness Buscombe

I thank the Minister for his full response to an extremely worthwhile debate. As he said, the debate amplifies the difficult balance that we must strike between the interests of the local community and those of the entertainment industry. Frankly, I do not believe that there is an inconsistency between the amendments that I moved on behalf of Her Majesty's Opposition and that in the name of my noble friend Lord Hodgson. On behalf of the industry, and if I may interpret my noble friend, I point out that there is a need for a cut-off point at which the operator can, as he put it, draw the line and proceed with confidence. Local authorities are asking for mechanisms to allow them to feel comfortable about that cut-off point. They seek an assurance that they can give that provisional statement, comfortable in the knowledge that they have as much information as possible in front of them on which to base their decision at the relevant time. I want to revisit a number of issues when I have read in Hansard what the Minister said.

The noble Lord, Lord Avebury, once again alluded—if I may put it that way—quite rightly to the difficulty that we all share; that is, that much of what we have discussed in relation to the Bill impinges on planning. I have continually referred to the concern that if local authorities are not given sufficient assurances to make them feel comfortable about acceding to applications such as those for a provisional statement, they may feel less inclined—notwithstanding the fact that they may not be on both the planning committee and the licensing committee, although they are all part and parcel of the same authority—to be positive at the planning stage. We appreciate that we are not supposed to become caught up in planning matters, but we cannot help it because planning and licensing are important to each other. The point that concerns the industry, local authorities and us in the local community is the end product; the two go together.

The Minister said that planning law is perfectly good. We understand that there will be a planning Bill, so we are rather in the dark. I accept what he said. Having had some experience on a planning committee in local government, and notwithstanding the Minister's full reply to my noble friend Lord Onslow about Section 106 conditions, it is worth while the Government considering the question a little further just to make sure that what the Minister said is absolutely the case. I recall from my experience that such applications have had quite an impact on what a building or some form of operation has or has not been able to do.

Lord McIntosh of Haringey

I am conscious that I was speaking rather elliptically in response to the noble Earl, Lord Onslow. I should like to write to him more fully, although I believe that what I said was right and answers his point. I shall send a copy of the letter to other Members of the Committee.

Baroness Buscombe

I thank the Minister for that. I am grateful to my noble friend Lord Onslow for raising the issue in Committee. That is one of the many reasons why we take time in Committee to consider such matters in detail. It is always helpful when Members of the Committee offer a different perspective and focus on areas that others may have missed.

We are grateful to the Minister for his full reply. I have a feeling that my noble friend Lord Hodgson is not entirely content with that reply. We shall read carefully in Hansard what the Minister said. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 207 and 208 not moved.]

Clause 28 agreed to.

Clause 29 [Advertisement of application for provisional statement]:

[Amendment No. 209 not moved.]

Clause 29 agreed to.

Clause 30 [Determination of application for provisional statement]:

[Amendment No. 210 not moved.]

Lord Brooke of Sutton Mandeville moved Amendment No. 211: Page 17, line 3, leave out subsection (2) and insert—

  1. (a) until the end of the period given for appealing the decision, or
  2. (b) if the decision is appealed against, until the appeal is disposed of."

The noble Lord said: In moving Amendment No. 211, I shall speak also to Amendments Nos. 220, 236, 244, 306 and 315. The last two are consequential and, therefore, I am speaking to them simply to say that that is what they are. My record for brevity may be mildly blemished on this grouping because there are several amendments on which I need to speak.

Amendment No. 211 might have been treated as consequential, but it is larger than my Amendment No. 199 on which the Minister has already spoken. However, I want to speak to Amendment No. 211 at large. I return to Clause 18. Subsection (2) would require the licensing authority to grant licences in accordance with the operating plan of the applicant in the absence of "relevant representations" from an interested party or responsible person, irrespective of whether it believes that granting the licence will promote the licensing objectives or whether it will interfere in the rights of individuals in its area. I put it that that is unreasonable.

The licensing authority has duties: to promote the licensing objectives; to refrain from taking decisions that contravene the European Convention on Human Rights under Section 6(1) of the Human Rights Act 1998; to have regard to its own licensing statement prepared after consultation; and to do everything in its powers to reduce crime and disorder in its area in accordance with Section 17 of the Crime and Disorder Act. It cannot possibly discharge those duties without the powers to do so. I am conscious that I am, to some extent, going over ground that we have already covered, but this is the lead amendment in the group.

The amendment ensures that the licensing authority has the powers to discharge those duties. The fact that no relevant representations have been made is not always a decisive indicator of the lack of problems. That is because the licensing authority may know of reasons why relevant representations have not been made—for example, the fear of harassment or the sheer volume of applications that the police and interested parties have to deal with.

Licensing authorities obtain their knowledge of those issues from a wider range of sources than relevant representations. I shall not go through the totality of them. But, in such circumstances, it would be entirely inappropriate for the council simply to grant the application. Doing so may, in any case, require the licensing authority to act in violation of its obligations under the Human Rights Act 1998. That is a matter on which I have tabled a later amendment. The situation would be far happier if licensing authorities could be given powers to promote the licensing objectives at all times and to act in accordance with their obligations under the Human Rights Act.

I turn to Amendment No. 220. This section of the Bill deals with applications to vary a premises licence. Such variations may be relatively minor—for example, to improve facilities at the premises—or they may involve an extension of the hours of operation to an hour late into the night. These amendments would amend the provisions relating to applications to vary licences in the same way and for the same reasons as the provisions relating to applications for new licences.

Clause 18(2), to which I have already referred, requires the authority to grant the licence unless "relevant representations" have been made. This requirement is inconsistent with the overarching obligation imposed by the Bill to promote the licensing objectives and to have regard to licensing policy and to central government guidance.

Amendment No. 236 is largely consequential but I specifically want to add a few words to it. The amendment seeks to remove the requirement that the, licensing authority must grant the application",

when an application is made to vary a premises licence so as to specify a new premises supervisor. It inserts a requirement to determine the application with regard to its licensing statement and any other material considerations.

I turn to Amendment No. 244. The Bill, as drafted, requires that the licensing authority must transfer a licence in accordance with the application. That requirement removes any discretion to refuse a licence unless an objection is received from the chief officer of police. As such, it is unnecessarily restrictive. Other people may have relevant information which could be considered by the authority.

The amendment seeks to allow the authority to have regard to any material considerations and to its licensing statements. I acknowledge that this is a consequential amendment applying to the provisions on the determination of transfer applications the approach proposed in relation to the determination of new applications. I beg to move.

Baroness Blackstone

One of our themes in these debates has been to strike a balance between three broad sets of interests: first, the general public interest; secondly, the interests of the industry; and, finally—this is a point that perhaps gets lost in this kind of debate—the rights of the responsible consumer to enjoy his or her leisure time with the minimum amount of interference from local or central government.

The amendments strike at the very heart of that package. The Bill gives a clear voice to interested parties—local residents, businesses and their representatives—and responsible authorities, such as the police, fire and environmental health authorities and so on. All applications are required to be brought to the attention of these groups, either through notification or advertisement, so that they have ample opportunity to comment.

Where they have a problem with an application, it is open to them to make representations. Indeed, in the case of the responsible authorities—the statutory consultees under the Bill—we would consider them bound to make representations whenever it is necessary in the interests of promoting the licensing objectives. Where such representations are received, the licensing authority must hold a hearing to consider them. As a result of the hearing, the licensing authority may take any one of four steps, including refusing to grant the licence, to modify the conditions attached to it or to exclude licensable activities from its scope.

That represents a fair, open and transparent system. These amendments seek to give the licensing authority the power to make its own pronouncements on applications, even where no representations have been received. While I understand the sentiments behind the amendments, surely local residents and businesses and responsible authorities are the appropriate parties to assess the impact of the application on their interests and responsibilities. Surely where those living nearby or those with responsibility for ensuring public safety, preventing public nuisance and crime and disorder are all satisfied with an application, the licensing authority would be acting beyond its mandate to impose its own view.

The job of the licensing authority is not to act as the final arbiter of taste or morality. It is not there to impose a raft of arbitrary conditions with little or no relevance to the premises concerned. It is there to ensure that the four clear licensing objectives, which have been subject to widespread consultation and enjoy widespread support, are promoted when a licensing application is being considered. The system that the Bill sets out is fair, open and transparent and will look after the interests of all concerned. On that basis, I very much hope that the noble Lord, Lord Brooke, will withdraw his amendment.

Lord Brooke of Sutton Mandeville

I believe that there remains between these Benches and the Government the feeling that local authorities are being given responsibility for running the system but are not being given any degree of discretion in terms of exercising it. It will be interesting to see how far local authorities up and down the country are able to persuade their electorates that, in fact, the reason that they could not prevent something happening was that the power had been taken away from them by the Bill and that they were therefore not allowed to provide that protection. However, it casts some doubt on how far it is fair to say that responsibility has been transferred to local authorities. Therefore, I believe that the issue will remain with us as long as we discuss the Bill. However, I am conscious of a desire to make progress in terms of today's proceedings.

12.30 p.m.

The Earl of Onslow

It appears to me that the Government are saying that the local authority has no power to say, "We do not want a lap-dancing club next door to a nunnery". If we are to have local democracy I believe that local authorities should have such a power and should be able to make those kinds of decisions. Local authorities should take into account matters of morality and taste.

Baroness Blackstone

The nunnery can make representations to the local authority, as can any business in the vicinity or any resident in the vicinity if they consider that a particular place is inappropriate for a pub or a night club. That is how the system will work. Moreover, the local authority, through its fire department or through its environmental health department, for example, can also decide that it would be inappropriate for a licence to be granted to any particular applicant.

Lord Brooke of Sutton Mandeville

I am grateful to my noble friend Lord Onslow for intervening and, in the process, soliciting a response from the Minister. I am genuinely grateful for his support. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Buscombe moved Amendment No. 212: Page 17, line 6, after "them" insert "within 28 days

The noble Baroness said: Amendment No. 212 deals with timing in relation to determining applications for provisional statements. Under Amendment No. 174, we discussed the need to impose some kind of time restriction on licensing authorities within which they must respond to applications made to them. I recall that the Minister gave a positive reply. Undue delays can be particularly damaging to businesses especially if they are waiting for a favourable response before carrying out building or other such work. Our proposal for a 28-day period is a suggestion only. It is imperative that a limit is imposed in the interests of efficiency. I beg to move.

Lord Davies of Oldham

As the noble Baroness indicated, we have discussed this matter already in Committee. We are at one with her on the need for a reasonable time limit. The only difference is whether it should be on the face of the Bill. We do not believe that it should be because we need the flexibility to be able to alter a time limit in the light of experience. The noble Baroness will recognise that in our White Paper we indicated a time limit along the lines she has suggested. So in terms of the objectives we are at one.

The Select Committee on Delegated Powers and Regulatory Reform agreed with us that this matter should be subject to secondary legislation. Purely for the purpose of flexibility, we would not want the figure on the face of the Bill, but we agree that the noble Baroness puts forward a reasonable proposition.

The Earl of Onslow

Will the Minister put a figure somewhere? It is all very fine to say that it is hoped that it will be 28 days. When I misbehaved as a little boy I used to say to my mother, "I didn't mean to do that", to which she would reply, quite justifiably, "The road to hell is paved with good intentions". Unless a figure is put in the Bill, as night follows day, it will not be applied and there will be a flock of Ministers travelling down that road to hell. It is as simple as that.

Lord Davies of Oldham

I assure the noble Earl that it would be necessary for us to issue guidance that indicated our requirements and expectations on time limits. We are seeking to avoid the rigidity of placing time limits on the face of the Bill.

Baroness Buscombe

I thank the Minister for his positive response. I am smiling to myself—I am sure that he will forgive me for saying so—because when we get into government, as we surely shall, every time we do not want something put on the face of the Bill we shall say that it is because we want to test the matter in the light of experience. That is a good phrase and I blame him not for using it. I thank the Minister for assuring the Committee that at least the time limit will appear in the guidance. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 213 not moved.]

Clause 30 agreed to.

Clause 31 [Restriction on representations following provisional statement]:

[Amendments Nos. 213A to 213C not moved.]

Lord Hodgson of Astley Abbotts had given notice of his intention to move Amendment No. 213D Page 18, line 16, leave out ", without reasonable excuse,

The noble Lord said: Having re-read the Explanatory Notes, I have seldom seen a case where what the Minister says at the Dispatch Box is exactly contrary to what is stated there. The Explanatory Notes state: Subsection (3) that is the right to make representations following a provisional statement— provides that this restriction will not apply if a person who wishes to make those representations has a reasonable excuse for not having made those representations at the time of the application … or if there has been a material change in the circumstances".

The word used is "or", not "and". If the "or" was an "and" the Minister would be absolutely right. But "or" means that a person could be in hospital or somewhere else. However, for the time being I shall withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 [Notification of change of mane or address]

Baroness Buscombe moved Amendment No. 214: Page 18, line 25, leave out paragraph (b).

The noble Baroness said: Amendments Nos. 214, 215 and 216 are consequential to those discussed on Monday in Committee concerning the designated premises supervisor. They remove the references to the designated premises supervisor from Clause 32 in relation to notification of change of name or address. I have no wish to plunge your Lordships back into a heated debate about the desirability of such a role. I made it clear on Monday that the functions of the designated premises supervisor seemed illusory to me and the role itself unnecessary. For a similar reason I gave notice of my intention to oppose the quest ion that Clauses 36 and 45 stand part of the Bill.

We heard what the Minister had to say in response to my wish and that of a number of noble Lords that the Government reconsider the role of supervisor and return to the original suggestion proposed in the White Paper. I intend to read thoroughly those comments in Hansard. There seemed to be inconsistencies and some confusion over the matter of the designated premises supervisor on both sides of the Committee. I hope that I shall not be alone in giving the matter much thought before we return to it on Report. I beg to move.

Lord McIntosh of Haringey

I am grateful for the way in which the amendment has been moved. I am not conscious that there is confusion but if there is, would the noble Baroness, Lady Buscombe, and any other noble Lord like to meet with us to discuss the matter between now and Report stage? I am sure that that could be helpful.

Baroness Buscombe

I thank the Minister for that welcome suggestion. We would certainly like to take the opportunity to discuss this very important point which has exercised, particularly, the entertainment industry. There may be other noble Lords—I am looking, for example, at the Cross Benches and at the Liberal Democrats—who may wish to take part in such a meeting. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 215 to 217 not moved.]

Clause 32 agreed to.

Clause 33 [Application to vary premises licence]:

[Amendments Nos. 218 and 219 not moved.]

Clause 33 agreed to.

Clause 34 [Determination of application under section 33]:

[Amendments Nos. 220 to 223 not moved.]

Clause 34 agreed to.

Clause 35 [Supplementary provision about determinations under section 34]:

[Amendment No. 224 not moved.]

Lord Brooke of Sutton Mandeville moved Amendment No. 225: Page 20, line 19, leave out subsection (3) and insert—

  1. (a) until the end of the period for appealing is given, or
  2. (b) if the decision is appealed against, until the appeal is disposed of."

The noble Lord said: I was tempted not to move Amendment No. 225, which would have improved my record for brevity and mitigated my having taken a little longer on the previous group. The Minister has already spoken on Amendment No. 199, which uses similar words. I am not sure whether this case is sufficiently different to necessitate the Minister responding again. I err in favour of caution in moving the amendment, especially as it stands alone. But I shall understand entirely should the Minister's answer be fairly brief. I beg to move.

Baroness Blackstone

I shall be brief. I do not think that the Government gave the amendment a standalone grouping but that it was degrouped from another group.

The amendment would deny the licensing authority the power to determine when the variation of the premises licence should come into effect. The time in this case would be when the change is proposed by the applicant, or, if that time has passed before the application is determined, such time as is specified in the determination. The amendment substitutes a different approach. The provisions would state that the variation could not come into effect until the time for appealing has passed, whether or not the application has been granted in the terms sought by the applicant or, if an appeal is lodged, the time when the appeal is determined.

The noble Lord, Lord Brooke, clearly has in mind a favourable determination only by the licensing authority, despite police or local residents' representations. These parties would be entitled to appeal against the licensing authority's decision. The effect of the variation—perhaps a change of trading hours—would then be held in abeyance until either the time for appealing has passed, or until the appeal has been determined, whichever is the longer period of time. The appeal process could, of course, be much longer.

The Bill empowers the licensing authority and not the magistrates' courts to make these decisions. It is not a two-tier application process where the licensing authority has determined the matter and its decision should stand until overturned on appeal. If a decision is made on appeal to deny the variation, the premises licence would have to revert to its original form. But the variation should stand in the interim period.

The amendment would slow the decision-making process, and we do not think it can be justified. Everyone involved in licensing must have certainty, and at the earliest possible time. So I hope the noble Lord will withdraw his amendment, as I believe he will from his remarks at the outset.

Lord Brooke of Sutton Mandeville

I am extremely grateful for the fullness of the Minister's reply. I would have been entirely content if she had been briefer. The fact that her reply was as full as it was enhances my appreciation of her and adds to my anxiety to be of assistance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.45 p.m.

[Amendments Nos. 226 to 228 not moved.]

Clause 35 agreed to.

Clause 36 [Application to vary licence to specify individual as premises supervisor]:

[Amendments Nos. 229 to 235 not moved.]

Clause 36 agreed to.

Clause 37 agreed to.

Clause 38 [Determination of section 36 application]:

[Amendment No. 236 not moved.]

Clause 38 agreed to.

Clause 39 agreed to.

Clause 40 [Request to be removed as designated premises supervisor]

Baroness Buscombe moved Amendment No. 237: Page 22, line 42, leave out "may give the relevant licensing authority" and insert "must give the relevant licensing authority, chief officer of police for the said area and the owner of the premises licence (if that is a different person)

The noble Baroness said: I shall not delay the Committee unnecessarily by speaking at length to Amendment No. 237. The Committee will recall that the subject of designated premises supervisors has already been discussed extensively. The amendment seeks to make clear whom a designated premises supervisor must inform if he or she wishes to abdicate his or her position.

The amendment's emphasis is on the change from "may" to "must". It is surely imperative that the relevant licensing authority should be notified if the designated premises supervisor intends to leave. It might also be sensible, if not vital, for the owner of the premises—-if a different person—to be informed, and perhaps also the chief of police.

Before the Committee responds by accusing me of introducing more paperwork, it seems only fair that if the designated premises supervisor intends to leave he or she has a responsibility to inform the necessary bodies. If the Minister is adamant that that role is necessary, then the extra burden on the holder of that position must be accepted as unavoidable. I beg to move.

Lord McIntosh of Haringey

I love the first part of the amendment because I like the change from "may" to "must". It enables me to say that a wish, if it is to have any effect, must be embodied in action. In other words, simply having the vague idea that at the end of a shift one has had enough and will become a big game warden is not enough: one has to do something about it. Therefore "must" is not necessary.

As to the more substantive issue of whether the chief officer of police and the owner of the premises licence should be notified as well as the licensing authority, I ask only a question: what is the chief officer of police going to do with the information? A chief officer of police is obviously concerned if a person is to become a designated premises supervisor, but if that person is disappearing off the face of the earth, what does it matter to him? I do not see the point.

Finally, as to the point about notifying the holder of the premises licence—

Baroness Buscombe

Perhaps I may quickly intervene. With all due respect to the police and other such authorities, I think that it is often the case that in such organisations no one feels comfortable unless they can tick all the boxes. We have obviously made reference to that here.

Lord McIntosh of Haringey

That sounds deplorable to me. I am thoroughly against ticking boxes when that is not necessary As a survey researcher I am even more against ticking boxes when that is not necessary. As to the requirement to notify the holder of the premises licence, that is clearly sensible. It is not much fun for the holder of the premises licence if someone walks out without telling them. The person stops getting paid, of course.

Lord Avebury

If the person has walked out because of trouble on the premises, would it not be important for the police to be aware of that, because they might want to close the place down?

Lord McIntosh of Haringey

What would they do with that information? Would that be trouble that had not been notified since the person decided to resign as designated premises supervisor? What would the police do with that information? The person would not be there—he may have gone off to be a big game warden, as I said.

Lord Avebury

But the premises may still be operating.

Lord McIntosh of Haringey

Yes, and there will be a premises licence holder who can and should be held accountable.

My answer to the point made by the noble Baroness, Lady Buscombe, about notifying the premises licence holder is that that is covered in Clause 40(4).

Baroness Buscombe

I thank the Minister for his response. Given that I interpret him as agreeing with our view that the Bill's reference to the fact that the designated premises supervisor "may" give the relevant notice is rather a casual approach to walking out, I am sorry that he is not inclined to accept our amendment. Forgive me, but the reference to being a big game warden has caused me to think of more exciting things—having just returned from Africa, I think that it would be wonderful to be a game warden. I shall read the Minister's words in Hansard, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 238 to 242 not moved.]

Clause 40 agreed to.

Clause 41 [Application for transfer of premises licence]:

Viscount Falkland moved Amendment No. 243: Page 23, line 41, leave out subsections (5) to (7).

The noble Viscount said: I have no intention of pressing the amendment, but seek enlightenment from the Minister. The powers given to the police during applications for transfers of premises licences are hardly appropriate in 99 out of 100 cases. They interfere with what is essentially a commercial transaction between two businesses. In the spirit of cutting red tape and bureaucracy—in which, we have been told many times, the Bill has been drafted—they are superfluous. That is why we are pressing for their removal.

In the event that a new premises licence holder does not meet the obligations, surely the police have powers to tackle him as soon as necessary. As I said, the vast majority of commercial transfers will not cause problems, so the process outlined in Clause 41(5), (6) and (7) seems unnecessarily bureaucratic. It will cause a great deal of uncertainty about commercial decisions that must be made—either an individual sale of premises or the transfer of an undertaking that may involve many premises, even thousands of them. I look forward to the Minister's help on the matter, because I seek clarity. I beg to move.

Baroness Buscombe

I support the amendment moved by the noble Viscount, Lord Falkland—my name and that of my noble friend Lord Luke are attached to it. The subsections provide a power of objection for the police during applications for transfer of premises licences. We feel that such a power is inappropriate, because it interferes with what is essentially a commercial transaction between two businesses, which may be independent units of large companies.

In the event that a new premises licence holder does not meet his obligations, the police have sufficient powers under the Bill to tackle him as soon as is necessary. The vast majority of ownership transfers will not cause problems, so the process outlined in subsections (5), (6) and (7) is, as the noble Viscount said, unnecessarily bureaucratic and, as he also said, creates a great deal of uncertainty for businesses in their commercial decisions about either an individual sale of a premises or the transfer of an undertaking, sometimes involving many thousands of premises.

Lord McIntosh of Haringey

I hope that I can assure the Committee that the clause contains the absolute minimum of bureaucracy—as it is being described. The Bill requires only that when a person applies to a licensing authority for a premises licence to be transferred to him, he must give notice of the application to the police. No further notification is required. I should imagine that a photocopy of the application to the licensing authority would do the trick. The police can object to an application only in exceptional circumstances, on the grounds that to grant it would undermine the crime prevention objective.

We have discussed this several times before. It involves not just the designated premises supervisor but the premises licence holder—which need not necessarily be a business, it could easily be an individual. In the case of a small pub, it will be the same person, who may under certain circumstances be worthy of investigation by the police. If someone had previously been considered inappropriate to be a premises licence holder, there had been problems with drugs, violence, noise or whatever, or the police knew something else about him relevant to whether he was a suitable person, surely the protection of local residents requires that the police should know about that and, in exceptional circumstances, be able to do something about it.

In any case, even if the licence holder is a business, the fact that a business buys a property does not mean that it is an appropriate person to hold a premises licence. Nothing in the Bill prevents such a sale or purchase, it is just that if a new purchaser—it could be a business—comes along, in exceptional circumstances the police ought to have the power to say and do something about that. That is the minimum protection for local residents that is called for.

Lord Avebury

Does the Minister consider that the premises licence holder should be someone with a clean criminal record? Will there be any uniformity in these matters? If it is proposed to transfer a premises licence to someone who has a criminal record, will the same attitude be taken by police forces across the country? If not, may not the policy of allowing the local police discretion to object in exceptional circumstances lead to a lack of uniformity in provision around the country?

Lord McIntosh of Haringey

The whole point about the guidance is that it will seek as much consistency—I shall not say uniformity—as possible, subject to the need for a degree of flexibility, which is expressed in the licensing authority's licensing statement. Businesses do not have criminal records. They can and will frequently be premises licence holders, but they cannot have criminal records. Perhaps they can, in certain circumstances, but I doubt that they would be relevant criminal records.

Viscount Falkland

I made my remarks with as much humility as I could muster. I did not really know the answer, and I sought enlightenment from the Minister. I think that, to some extent, I got it. I shall read Hansard to see whether I am correct in coming to that conclusion.

It was my impression that the main concern of the industry was that the Bill gave an unnecessary opportunity for police powers to be used, as they could sometimes be used, without proper understanding of the transaction that transferred the premises. There was a fear that there would be an enormous bureaucratic hindrance to the commercial activity of large groups doing a major transaction involving complicated procedures and a large number of outlets. Having said that in all humility, I shall examine what the noble Lord said and seek advice as to whether to proceed. I beg leave to withdraw the amendment.

Clause 41 agreed to.

1 p.m.

Clause 42 agreed to.

Clause 43 [Determination of transfer application]:

[Amendment No. 244 not moved.]

Clause 43 agreed to.

Clause 44 [Notification of determination under section 43]:

[Amendment No. 245 not moved.]

Clause 44 agreed to.

Clause 45 agreed to.

Clause 46 [Interim authority notice following death etc. of licence holder]:

[Amendment No. 246 not moved.]

Clause 46 agreed to.

Clause 47 [Cancellation of interim authority notice following police objections]:

On Question, Whether Clause 47 shall stand part of the Bill?

Lord Redesdale

I shall not press the matter, but I shall ask the Minister for clarification. As we read the clause, it appears that an interim authority notice can be cancelled because of police objections. If the police object to the person taking over the premises and that person is the holder of a personal licence, on what grounds would the police object? If the person qualifies for a personal licence to run premises, on what grounds could the police say that he is not a fit and proper person?

The clause seems to reintroduce the "fit and proper person" criterion. The Minister will give us reasons why we should support the clause, but I would be grateful for an answer to that question.

Baroness Buscombe

The loss of a licence should not affect the premises licence. As the premises are still fit to trade, it should be possible to install another personal licence holder to keep the business running, at least for the period of the interim authority notice. If a person possesses a valid personal licence, there is no reason why he should be prevented from working. It does not happen with driving licences, and it should not be the case here either.

The new licensee can simply register with the police. The introduction of additional police powers of objection into the interim authority procedure is, once again, unnecessary and bureaucratic.

Lord McIntosh of Haringey

There are, of course, provisions for a transfer of licence to take effect immediately, so that there is no gap and the business need not close in the mean time. Clause 47 applies when an interim authority notice has been given, in accordance with Clause 46, and the police have been properly notified.

The police would intervene when the chief officer believed that, in the exceptional circumstances of the case, a failure to cancel the notice would undermine the crime prevention objective. The chief officer must then notify the licensing authority. When he does that, the licensing authority must hold a hearing, unless the police and the person who gave the interim notice agree that it is not necessary to hold one. The licensing authority decides the matter. If it agrees with the police, it is empowered to cancel the interim authority, but it must give reasons.

The clause relates to the unusual circumstances that arise when the holder of a premises licence dies, is made bankrupt or becomes incapacitated. Other people with an interest in the premises may be greatly affected by any period in which trade stops. For example, the clause will ensure that, if the premises licence holder is a tenant and the freeholder has been supplying him with beer, the premises cannot be run for up to two months—which would otherwise be the case—by a person who has an interest but turns out to be an unscrupulous criminal. For example, if the laundering of drugs money were to carry on for two months—that is what could happen otherwise—serious damage would be done. It is important that we give the police the powers to intervene in exceptional circumstances.

Lord Redesdale

That does not really answer our fundamental question about whether powers should be introduced to review personal licences in that way. However, we will not press the matter.

Clause 47 agreed to.

Clause 48 agreed to.

Clause 49 [Reinstatement of licence on transfer following death etc. of holder]:

[Amendment No. 247 not moved.]

Clause 49 agreed to.

Clause 50 [Application for review of premises licence]:

[Amendment No. 247A not moved.]

Baroness Buscombe moved Amendment No. 248: Page 29, line 27, at end insert— (1A) Without prejudice to subsection (1), the chief officer of police for the police area in which any premises are situated must apply for a review of the premises licence for those premises if he is aware that there is being, or had been, carried on at those premises the sale, letting for hire, playing or exhibition of sound recordings, films, broadcasts or cable programmes in circumstances which amount to an infringement of copyright for the purpose of the Copyright, Designs and Patents Act 1988 (c. 48). (1B) In subsection (1A) "sound recordings', "films", "broadcasts" and "cable programmes" have the same meaning as in Part 1 of the Copyright, Designs and Patents Act 1988 48) (copyright).

The noble Baroness said: The piracy of record music and films and the theft of signals cause great harm to businesses that play copyright material with the permission of the rights holders. After permission is obtained, fees are paid either directly or via collecting societies, which remunerate the distributors and producers of the copyright material.

It is understood that the producers of pirated material use the proceeds of crime to fund the production of illegal copies. The process is also a vehicle for money laundering. Many people who buy pirated material or who permit the use of their premises for the sale or use of such material do not consider that the theft of intellectual property seriously harms businesses that legitimately use copyright material or the rights holders. There is, however, a loss of tax revenue to the slate. People using pirated material are encouraging criminal contact such as for the drugs trade and money laundering.

We believe it would strengthen the Bill if there were a clause directing that the premises licence should be reviewed, if the police know of copyright misuse. Thus, the holder of a personal licence or the designated premises supervisor will ensure that the correct permissions are obtained for the use of copyright materials and, by doing so, avoid criminality. I beg to move.

Viscount Falkland

I support everything the noble Baroness said. Piracy of intellectual material and breaching of copyright are massive problems. They cause the loss internationally of millions, perhaps billions, of pounds to industries. Under the present regime, pirated DVDs and video cassettes are easily obtained in outlets of the kind we are discussing. At one end they are sophisticated; at the other they are very crude. I imagine that a pub or club involved in such illegal activity would use products from the top end. With regard to films, much of the pirated material originates from California, from Hollywood. In the Far East and Middle East countries, one has less high-quality pirated recordings. They are recorded from public film shows by people with video cameras on their laps. Noble Lords may be surprised to hear that such activity is extraordinarily profitable for the criminal organisations involved. It is a huge problem.

I support the noble Baroness's amendment. The Bill should make it difficult for licence holders to be tempted to use pirated material in any shape or form and to use Sky top boxes, for example, in order to show sporting events and so on without paying the appropriate fees. Sky is concerned about that possible development. It is another door which should not be left ajar in terms of risk to companies. It should be made plain to licensees that such activity will not be tolerated.

Lord Monson

Despite those two powerful arguments, I wish to put a dissenting view. The essential purpose of the Bill is to strike the right balance between liberalisation on the one hand and public order and safety on the other. Much of the argument during the many Committee days has been on exactly where to strike the right balance.

To extend the Bill to strengthen copyright laws which are not entirely uncontroversial seems to take the scope of the Bill too far. Therefore, I am unable to support the amendment.

Lord McIntosh of Haringey

The Government support the 1988 copyright Act and wish to see it enforced. However, I wish to make two points about it so far as it relates to this Bill.

First, where infringement of the 1988 Act is a criminal offence as opposed to one that would result in civil action, it is open to interested parties and responsible authorities to apply for a review in the way the amendment proposes. So, for example, a cinema could make an application if licensed premises were showing films for which they did not have the necessary permission. Secondly, the amendment would make it compulsory for the chief officer of police to apply for a review if the sale, letting for hire, playing or exhibition of sound recordings, films, broadcast or cable programmes had taken place in infringement of copyright.

In this Bill, we do not compel either interested parties or responsible authorities such as the police to apply for a review because a particular offence has been committed at the premises. We provide for discretion for those authorities to decide for themselves when to apply for review. If we were to make this compulsory and there were, for example, fights at a pub, the police would have discretion to apply for a review, but if a licensee played a single musical track to his customers for which he did not have the necessary permission, the premise's licence would automatically be reviewed. I think that that would be out of keeping with the discretion provided for in the Bill.

Of course the concern is genuine. Officials are in discussion with the trade associations, in particular with the Cinema Exhibitor's Association. We shall be exploring with it whether its concerns can be more fully addressed in the guidance which will be issued.

Baroness Buscombe

I thank the Minister for his reply. I am sorry that the Government feel disinclined to accept the amendment. The noble Lord, Lord Monson, spoke of the right balance which has to be struck. We do not want to add to bureaucracy. However, we believe that it is a serious concern. We have been lobbied by a number of outside organisations which are concerned that the piracy of records, music, films and theft of signals is causing great harm to them and those they represent.

The proliferation and use in thousands of licensed premises of counterfeit technologies such as counterfeit smart cards to circumvent entertainment restrictions is a deep concern. The sale of pirate ITV Digital smartcards, for example, contributed significantly to that company's downfall. We understand that signal theft is currently depriving the Premier League of revenue as well as many other TV channels.

The temptation for public showing, for entertainment without permission of the rights holders, is an infringement of copyright under the 1988 Act. At present the enforcement of those crimes is low on the list of priorities for local authorities. The addition of the amendment would raise awareness of the importance of intellectual property to the economy and the changing nature of entertainment offered by licensed premises.

I do not exaggerate the situation when saying that at present it is all too easy for people to ignore copyright laws. We believe strongly that the amendment is sensible. It seeks to deflect temptation from those who think that they can get away with infringing copyright.

We have heard the Minister. We appreciate that the Government are holding meetings with interested parties. However, we believe strongly that there is a growing problem. If the 1988 Act is not serving its purpose, the Bill provides a useful opportunity to strengthen copyright issues. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 249 not moved.]

Clause 50 agreed to.

1.15 p.m.

Clause 51 [Determination of application for review]:

[Amendment No. 250 not moved.]

Lord Brooke of Sutton Mandeville moved Amendment No. 251: Page 31, line 2, leave out "three" and insert "six

The noble Lord said: I acknowledge that these matters are subjective but I aver that the limit of three months is too short to act as a real penalty or deterrent.

A change to six months, especially when taken with the proposal in Amendment No. 252 to give the licensing authority greater flexibility to decide what sanctions would be appropriate, seems more the right balance. I beg to move.

Baroness Blackstone

The ability to seek a review of premises licences and club premises certificates set out in the Bill is new. At present, the licensing justices have two routes open to them. They can either revoke the licence altogether or do nothing. The nuclear nature of the first option often means that they are reluctant to take action, particularly for minor transgressions. There is no opportunity to consider a justices' licence in the absence of a breach of obligation, which undermines the ability to regulate the licensed trade.

The review process is a significant and powerful one. The steps that the licensing authority may take following a review provides it with all the levers needed for monitoring and regulating the licensed trade effectively in the absence of non-compliance with obligations. At the same time, they ensure fair treatment for the industry.

Amendments Nos. 251 and 321 would extend the maximum duration of suspension of a licence or certificate from three months to six. The amendments are draconian and unnecessary for the same reason. It is just about conceivable that a business might survive a suspension of its ability to trade for three months, but any longer than that and the overwhelming likelihood is that it would go out of business. That would have exactly the same effect as a revocation, which is already provided for in the Bill. I hope that the amendments will not be pressed.

Amendments Nos. 253 and 323 are similarly draconian. As the noble Lord said, the proposals would extend from three months to six the period for which a licensable activity or qualifying club activity could be excluded from the scope of the licence or certificate. That tips the balance too far away from the careful equilibrium we have achieved through negotiation.

Finally, Amendments Nos. 252 and 322 would allow the licensing authority to impose its own bespoke outcome to a review process. That would completely undermine the openness and transparency that we have sought. It must be remembered that the system of review is just that—a review. It is not an alternative to the taking of proceedings in respect of breaches of authorisations. It is designed to allow the continuation of an authorisation to be considered in the light of an application which sets out grounds that are relevant to licensing objectives. The steps available to the licensing authority in determining the review must be proportionate and consistent. In the light of those comments, I hope that the noble Lord, Lord Brooke, will withdraw his amendment.

Lord Brooke of Sutton Mandeville

I must apologise to the Committee. Although I spoke to Amendment No. 252 and implicitly to Amendment No. 253, I failed to point out that Amendments Nos. 321 to 323 are consequential in Clause 86. I am grateful to the Minister for having replied to them notwithstanding.

The Minister said that substituting six months for three months is draconian. I have always thought that King Draco has had rather a rough time in terms of world history since he performed his original acts. We now know from archaeology that the Philistines were nothing like as disagreeable as they have always been thought to be. I hope that in due course King Draco's reputation may be resuscitated too I mention him because, if my six months are draconian, then the Minister's three months are semi-draconian. In the circumstances, it would be possible for us to argue, taking the alternative point of view, that the Government are being, although not draconian, semi-draconian, which is a step in the same wrong direction.

My amendment is subjective; in that sense, it was probing. I beg leave to withdraw the amendment.

Amendment, by leave. withdrawn.

[Amendments Nos. 252 to 255 not moved.]

Clause 51 agreed to.

Clauses 52 and 53 agreed to.

Clause 54 [Fees]:

Lord Brooke of Sutton Mandeville moved Amendment No. 256: Page 32, line 9, leave out "Regulations" and insert "The relevant licensing authority

The noble Lord said: In moving Amendment No. 256, I speak also to Amendments Nos. 265 to 267, 269, 328, and 330 to 333. Although there are a number of amendments listed, I speak to the generality of them—certainly to the generality of the first five. The amendments to Clause 90 are consequential.

Clause 54 enables the Secretary of State to make regulations under which the fees payable for licence applications are prescribed nationally. The Committee is familiar with the fact that I represented Westminster in another place. In common with most local authorities, Westminster considers that a licensing authority must be able to set fees which reflect the costs of providing and enforcing the licensing regime and which are appropriate to the local area.

As drafted, the Bill will prevent the council and local authorities from setting a realistic licensing fee. Costs will inevitably vary significantly from region to region within the United Kingdom. Costs to Westminster for additional administration, inspection and enforcement—I believe that I quoted the figure in an earlier debate—are estimated to be £1.6 million and £2.1 million. Even those figures do not take into account additional costs associated with street cleansing and policing that will be incurred in the event of substantial increases in late-night drinking.

The Committee will recall Stanley Baldwin's remark at the Westminster by-election during the 1929–31 Parliament that the press barons were exercising power without responsibility. He described it in a phrase provided to him by his cousin, Kipling, as "the prerogative of the harlot throughout the ages". In parenthesis, I should add that, at that point, the Duke of Devonshire, who was sitting on the platform with an eye to the West End and Soho ward, said: Bang goes the tarts' vote"!

Inflexibility in that area will increase the sense that local authorities are being given, by neat antithesis, responsibility without power. I beg to move.

Lord Redesdale

I speak to Amendments Nos. 261 and 271 in the names also of my noble friend Lord Falkland and the noble Baroness, Lady Thornton, who is ill today. The noble Baroness will be unable to speak to the amendments. I speak to Amendment No. 261 possibly for different reasons than those of the noble Baroness, Lady Thornton.

The issue of fees—which I believe will be prescribed in the guidance—needs to be debated. A balance is required between the ability of local authorities to meet their obligations as set out in the Bill and their need to be self-financing without the fee being so onerous as to tax the industry, as has happened in the past.

The noble Lord, Lord McIntosh, has indicated that fee amounts may change dramatically. I may be putting words into the mouth of the noble Lord; he perhaps did not say dramatically, but simply indicated that different fees would be charged in different areas. That appears to contradict the situation we were led to expect in the White Paper; namely, that fees would be at a reasonable level and not vary much between local authorities.

Obviously that will have consequences throughout the country. I should like the Minister to give some indication of whether fees will be allowed to be set at reasonably different levels between local authorities. The noble Baroness, Lady Thornton, is concerned about the ability of local authorities to meet their obligations. However, the industry is rightly worried that the White Paper indicates that a single figure would be uniform throughout the country. From what the noble Lord, Lord McIntosh, said, that may not be the position.

Amendment No. 270 seeks to place an obligation on the industry to pay fees on time. If it fails to do so, this could leave licensing authorities with liabilities. It is a probing amendment to ascertain the Government's views.

1.30 p.m.

Lord Hodgson of Astley Abbotts

Amendments Nos. 263 and 264 stand in my name. I agree with the force of the argument advanced by my noble friend Lord Brooke in introducing this group of amendments. But equally, we must find a way to prevent capricious behaviour on the part of local authorities which may see this provision as a means to earn revenue. This is a licensing Bill, not a street-cleaning or policing Bill.

The view from the pubs in Derbyshire is that a great deal of the Bill has to do with areas inside the M25 and that much of the debate has related to a Westminster urban environment and has had less relevance to their area. They would be very concerned if local authorities were free to cross-charge or to cross-load activities that they carry out which are perceived to be connected to licensing activities.

The provision must not become open-ended, because there is the potential for unfair and discriminatory activity. The industry is already a big taxpayer. Many of these businesses are small concerns; therefore, a high fee would be very damaging. We tend to forget that although Westminster incurs costs in terms of policing, street-cleaning and so on, it also receives great benefits from the economic activity that public houses bring: tourism, for example, and the fact that people are attracted to the area. To single out licensing activity as requiring special treatment is not fair. Therefore, where fees are being set, my Amendment No. 263 requires the Government to have regard, to the cost of providing the licensing function", and nothing else.

Amendment No. 264 is a probing amendment in the interests of clarity. The idea of an annual fee opens up a series of concerns: how it will be set; how often it will be reviewed; and the possible relationship between the original fee for obtaining a licence and the annual fee payable thereafter—bearing in mind that some 30,000 licensed premises in this country are free-houses; that is, they are essentially small businesses for which these kinds of charges could be significant.

Viscount Falkland

Further to the points so clearly set out by my noble friend Lord Redesdale, will the Minister enlighten us, as we do not have the guidance in front of us? A tension must arise between the requirements of local authorities to carry out their duties under the Bill and the difficulty in which certain businesses will find themselves; namely, having to worry about whether their current costs will escalate. I know that discussions have taken place and that the Minister has already expressed a view, but I refer specifically to cinemas and small theatres. For such organisations to be looking at an uncertain period in which they might be required to put aside substantial funds which they would find it hard to acquire in order to meet surprisingly high costs in this area is undesirable. One would wish that they would remain in roughly the same position as under the present regime, but there is a danger here and there will be a tension in this area.

Baroness Buscombe

I rise to speak to Amendments Nos. 262, 268 and 271 relating to fees and their regulation. Many of the fears voiced at Second Reading concerned what fees should be charged by the licensing authority and whether they should be set centrally or be subject to local variation; and how the system could possibly be cost-recoverable for the licensing authorities.

The Government have assured us that the system will be fair both to local authorities—whose administrative costs will be covered by the fees—and to the licensed premises, which will not be overly burdened financially. That is certainly how we understand the matter from our reading of Hansard.

I fear that the Government's assurances have failed to satisfy either party. Licensed premises may fear the kind of extortion that they have faced in the past in order to procure public entertainment licences. They may also question whether the three-tier system of fees charged will be a fair one.

Although I sympathise with those concerns, I believe that the local authorities, which will take on the role of licensing authorities, have more grounds for alarm. We have spoken of the costs in terms of administration, working hours and the setting up of computer software programmes that the new licensing system requires. Aside from this, there is the extra burden that will accrue to local authorities in other spheres—for example, street cleaning and transport.

I simply do not see how the system can be self-financing unless there is scope for some local variation in the fees set. I stress my firm belief that there must be a capped maximum limit, as emphasised in Amendment No. 271. Fees should not by any means be allowed to rocket sky high at the whim of a local authority, which should be using funds other than the proceeds of licensing to pay for street cleaning, for example.

The issue is controversial. Why should one venue pay more for its licence than another, similar, venue simply because it is situated in an urban area, where cost recovery is likely to be higher? It could be argued that the costs for a premises in an urban area will be lower because of the number of premises in a small area all contributing to those costs. Is it enough to say that this discrepancy in the fee should be the price to pay for a self-financing and efficient licensing system?

These are probing amendments at this stage. We look forward to the publication of the draft guidance. We hope that, in addition to the Minister's response to our amendments today, the draft guidance will be clear as to exactly how this system will work and how the fees will be set.

Although the noble Lord, Lord Cobbold, is not in his place, and notwithstanding the fact that my name has not been added to his amendments, perhaps I may speak briefly to them. He, too, is concerned about fees. His Amendment No. 259 suggests that the amount of the fee for applications under this part of the Bill should be, determined by the licensing authority on the basis of cost recovery". It would be interesting to hear the Minister's response to that point. The noble Lord's Amendment No. 260 proposes the removal of the proposal that, Regulations may … prescribe the amount of the fee". Perhaps there is a fear of inflexibility and the idea is that local authorities would be better placed to set the fee.

My noble friend Lord Hodgson said that many of the concerns relate to what happens within the M25, but much of the debate is what I would call "pub centric". We are talking about the entertainment industry as a whole.

The noble Lord, Lord Cobbold, is concerned about extremely large events which sometimes have enormous fees placed upon them. Certainly in the area where I live the local authority demands extraordinarily high fees for occasional events involving entertainment on a large scale.

I look forward to hearing what the Minister has to say in relation to our amendments and to seeing the proposals in the draft guidance.

Baroness Blackstone

Licensing fees will be set centrally and fairly. They will be set at a level which will allow licensing authorities to recover the full costs of exercising the licensing functions, including administration, inspection and enforcement. Amendment No. 263 is therefore unnecessary. As to Amendment No. 264, removing the requirement for an annual fee to be paid to a licensing authority would deprive it of the revenue stream necessary to fund its inspection and enforcement activities. For that reason, I cannot agree to that amendment.

Fee levels will be set following full consultation with local authorities and the industry. As the noble Baroness, Lady Buscombe, said that most of the other amendments are probing amendments, I shall not deal with each of them in turn. I shall attempt to set out for the Committee how the system will work but, before I do so, I should say to the noble Lord, Lord Redesdale, and the noble Baroness, Lady Buscombe, that the guidance will not set the fees. The fees will be set by regulation under statutory instrument and noble Lords will therefore be able to debate them when the time comes.

Annual fees that are not paid on time will become debts recoverable by the licensing authorities. Local authorities already have powers to recover debts and we consider that to be an appropriate arrangement. To suspend the licence or club premises certificate where a fee is paid late, or where a licensee or club official forgets to pay, as Amendments Nos. 270 and 334 suggest, would be disproportionate. The livelihoods of many people, not only the licence holders, could be at stake for what may be an administrative oversight.

The exact level of fees is yet to be decided. The Secretary of State is still considering representations on the levels and the figures are not therefore etched in stone. We currently estimate that the one-off fee for a premises licence will be set in bands between £100 and £500, with annual charges for the purpose of providing revenue for the licensing authority set in bands between £50 and £150. These estimates are based on information from local authorities, industry and professional organisations such as the Chartered Institute of Public Finance and Accountancy (CIPFA).

The levels of fees for particular premises will depend on the size of the premises. There is concern about the higher costs associated with running a licensing system in London and the South East compared with elsewhere in England and Wales. The Government acknowledge that that part of the country may be a special case and we are considering whether there should be a geographical element in the formula that assigns premises to bands. That does not mean that fees will vary from local authority to local authority outside that banding. It is important to establish that principle.

As the noble Baroness, Lady Buscombe, said, there is considerable inconsistency at present in the level of fees charged for public entertainment licences, which are set locally, where local charges for similar premises can vary from £50 to £20,000. Many local authorities charge a flat rate fee of, say, £500, and then add a per capita fee. This leads to excessively high charges, with some venues—night clubs, for example—which have a capacity of 2,000 being charged more than £20,000.

The Chartered Institute of Public Finance and Accountancy estimated that approximately 46,000 public entertainment licences were issued in 2000–01 by local authorities and that the cost of administering these, including inspection and enforcement, was £7.1 million. CIPFA also estimated that the total income for fees charged for these licences was £16 million—a net profit of £8.9 million. Securing income from fees charged for a particular purpose is unlawful and the disparity in the income and expenditure figures is obviously a cause of considerable concern.

Three years ago, the Local Government Association and the Home Office jointly issued a circular to local authorities expressing concern that particularly high fees and associated costs were deterring some organisers from staging entertainment. It also pointed out that it is unlawful to seek to use such fees to raise revenue. I am afraid that the response of some local authorities was simply to increase their fees. Some local authorities—perhaps a minority—have not acted responsibly. That is why we have concluded that fees must be controlled centrally.

Local authorities have had their chance and they have failed. The view that some authorities are charging excessive fees is not only ours but is shared by the LGA, as the joint circular shows. We have received many complaints about the current system from those who stage public entertainment. Some of the most vehement complaints have come from touring companies which, by their very nature, perform in many different parts of the country and experience this inconsistency at first hand.

Not surprisingly, given this kind of behaviour, those parts of the industry which currently deal only with licensing justices and not with local authorities have expressed a great deal of concern ever since we announced our intention to unify the licensing systems under local authorities. We need to provide everyone involved with an assurance that local authorities may not use the licensing system as a method of raising revenue for other purposes, as the noble Baroness, Lady Buscombe, rightly pointed out.

The Committee may be interested to know—this relates to a question raised by the noble Viscount, Lord Falkland—that there are precedents for licensing fees being set centrally. Under the Cinemas Act 1985, no local authority may charge more than £600 a year for an annual cinema licence.

The noble Viscount also asked about theatres and whether any will be worse off. It will depend. If a theatre is paying only a tiny licence fee, it may be worse off; but, for the most part, many theatres will be better off under this more regulated system than under the current system.

So fees will be set at a level which will allow all licensing authorities to cover their costs. The system will be self-financing and there will be no potential for a deficit which council tax payers will have to pick up.

I hope that I have responded to most of the questions that have been asked. In the light of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Redesdale

The Minister's reply was extremely comprehensive. It is one of the most welcome we have received so far during the passage of the Bill. Is it the Government's intention to outlaw the practice of charging for an entertainment licence and then charging per capita for individuals, as has happened in the past?

Baroness Blackstone

When we set out in regulations what is to be charged, it will almost certainly be the case that there cannot be per capita charges because they lead to the hugely excessive charges being made, particularly for public entertainment.

Lord Brooke of Sutton Mandeville

Our new sitting arrangements have the effect that some of us regularly go without our lunch on Thursdays. I shall not add insult to injury by making a long speech at this stage. I am grateful, as the noble Lord, Lord Redesdale, was, to the Minister for the comprehensiveness of her reply. However, there were moments when I would not necessarily have given her the same tribute for realism. But that matter is for another day.

The slight problem that I predict is that, although the guidance will be available to us by Report stage, the regulations to set the fees will not necessarily be with us so early. Since the Government make much of the fact that the Bill is a package that strikes a balance between the interests of all concerned, it would be unfortunate if we were asked to make a judgment without having the answer to what is a severe, serious matter from the point of view of local authorities.

I do not disagree with anything that the Minister said in her speech. We have had a good debate. This is a good moment at which to break. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Davies of Oldham

Following the remarks of the noble Lord, Lord Brooke, this is a convenient moment for the Committee to adjourn until after Starred Questions. Therefore, I beg to move that the House be resumed.

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

House resumed.

Lord Davies of Oldham

My Lords, I beg to move that the House do now adjourn during pleasure.

[The Sitting was suspended from 1.51 until 3 p.m.]

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