HL Deb 19 June 2003 vol 649 cc912-22

5 Clause 5, page 3, line 28, leave out from first "of" to "; and" in line 31 and insert "public nuisance"

Lord McIntosh of Haringey

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.

The licensing objectives and their promotion must be capable of being translated into conditions that have to be complied with by licensees as well as representing the overarching criteria against which the licensing authority must discharge its functions in the public interest.

Amendment No. 5 restored to the Bill the four licensing objectives that it originally contained. Those are the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The House removed the prevention of public nuisance by an amendment in another place. Amendment No. 5 therefore reversed that decision and deleted the reference to public amenity, which this House had put in its place.

We believe that replacing "public nuisance" with "amenity" significantly weakened the Bill, in particular in terms of the protection that it affords local residents in relation to the carrying on of licensable activities. I recognise that that was clearly not the intention, but it was the effect. In our debates at that time, an impression was given that public nuisance was a narrow concept that would not cover some of the problems that might be caused to residents living near licensed premises. That was because the House was directed by contributors to the debate to the narrow definition of "nuisance" used in the Environmental Protection Act 1990. That definition is misleading in the context of the Bill.

The Bill does not define "public nuisance". It retains the wider meaning that it has under common law; not that in the 1990 Act or in any other statutory definition. "Public nuisance" therefore retains the breadth and flexibility to take in all the concerns likely to arise from the operation of any premises conducting licensable activities in terms of the impact of nuisance on people living or doing business nearby.

On the other hand, "public amenity" is a narrower term derived from planning law and refers to the aesthetic and visual qualities of an area. It would not cover the problems of noise and many aspects of anti-social behaviour that we acknowledge, to which the operation of some premises could give rise. Planning law already provides local planning authorities with the tools that they need to address public amenity concerns at any premises, not only at licensed premises. It would therefore be repetitious to include them in the Bill. It is essential that the prevention of public nuisance remains one of the key licensing objectives of the Bill.

I can assure the House that in the guidance to be issued by the Secretary of State we shall make direct reference to public amenity issues that might properly give rise to conditions attached to licences under the objective of preventing public nuisance. I remind the House that we shall have an opportunity to fully debate the statutory guidance before it is issued. I hope that that will go some way towards persuading the House not to oppose the changes made when the Bill was in another place.

Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord McIntosh of Haringey.)

5A Baroness Buscombe rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 5, leave out "agree" and insert "disagree".

The noble Baroness said: My Lords, we now return to an amendment that enjoyed much cross-party support when we moved it in your Lordships' House. The issue goes to the heart of the Bill. It concerns the impact of a licensed premises on everyone in the vicinity of those premises.

When we debated the matter at length in your Lordships' House, we asked—and we now ask again—the Government to recognise the need for licensing authorities, when carrying out their functions under the Act, to consider both the quality of life for all those living and working in the vicinity of a licensed premises and the interests of local businesses, local enterprise and their customers' enjoyment of the premises' facilities.

A fair balance needs to be struck. The licensing objectives set out in the Bill as originally drafted fail to address that need. Although one of the four licensing objectives was the prevention of public nuisance, it was and remains our contention that simply referring to public nuisance fails to address that need. The term "public nuisance"—here I strongly disagree with the Minister—is open to broad interpretation, which would make it incredibly difficult for licensing authorities to be sure that they were promoting the licensing objectives in a fair and proportionate way.

Noble Lords may remember that in Committee I took time to highlight the case law on the subject of public nuisance to show that the definition of "public nuisance" is open to different interpretations. What we now need is clarity for the benefit of licensing authorities when promoting the licensing objectives. Our amendment clarified the situation and was fair and in the interests of industry and local residents. I am amazed that Members in another place saw fit to overturn what made sense for all their constituents.

Let me remind your Lordships of the wording that we used. When we refer to amenity. we mean the prevention of unreasonable diminution of the living and working amenity and environment of interested parties in the vicinity of the premises, balancing those matters against the benefits to be derived from the leisure amenity of such premises. We believe that this amendment is entirely proportionate, fair and sensible. We therefore ask the Government to reconsider the matter. It is a crucially important issue that can surely do no harm to the legislation. In the interests of enterprise and residents alike, it would do a great deal of good. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 5, leave out "agree" and insert "disagree".—(Baroness Buscombe.)

Lord Phillips of Sudbury

My Lords, like the noble Baroness, Lady Buscombe, I, too, am unhappy and not persuaded by what the Minister has said. Incidentally, I congratulate him on his most recent attainment.

The truth of the matter is that guidance is no more than guidance. It has no statutory bite, and in any event it can be interpreted only within the ambit of the statute. If the statute, as proposed, refers only to public nuisance and not to the much wider and more balanced test to which the noble Baroness, Lady Buscombe, referred, which seeks to balance the amenity of local residents with entertainment and business factors, then it is not a matter of opinion but a matter of fact that the guidance can be construed only in accordance with that public nuisance objective.

As has been said many times on Report, in Committee and again today, "public nuisance" is a very high hurdle indeed. A publican ambitious to extend his or her trade is encouraged by the existing draft guidance to apply for and obtain a 24-hour licence; there is a strong predisposition in the guidance to 24-hour licences. It would therefore be idle to pretend that normal behaviour at abnormal hours, such as the regular coming and going to a village pub at three, four or five o'clock in the morning, would not create a great despoliation of individual amenity—noise, light, traffic.

It is also idle to pretend that the conduct of a single person going lawfully and peaceably to a village pub at four o'clock in the morning, getting out of his or her car, slamming the door, turning off the engine, going into the pub, coming out sober, getting back into the car, starting the engine, slamming the door and moving off, could constitute a nuisance. It would not come remotely within the definition of nuisance. The Government should not therefore pretend that "public nuisance", the third of the four objectives, would be of any use at all to counter that amenity loss.

In conclusion, leaving the statute as it is—regardless, frankly, of what is put in the guidance—is to disenfranchise local people even from being able to make objection to the grant of a licence. One can make objection only on the grounds that one of the four general objectives is likely to be breached. If one cannot therefore establish public nuisance—and one will not be able to—one cannot even go before the licensing authority and say one's piece. That is a most extraordinary state of affairs in a so-called free country. Although there are other aspects to the Bill, the centrality of its key objectives will disallow ordinary residents from having any remedy at all. I therefore remain deeply unhappy about the position; I believe that I also speak for my colleagues.

The Lord Bishop of Peterborough

My Lords, from these Benches I express my sympathy with the amendment. Every bishop in the land who lives in a town or city centre is aware of how the quality of life there has decreased. The clergy are often among the few residents who are still living in town and city centres. The increase in licensing hours and entertainment provision, and the opening of public houses, make it difficult to maintain quality of life in those places. I personally have had to move a clergyman who with his family found it impossible to continue to live where they were simply because the licensing authorities did not make allowance for his and his family's amenity in living near a city-centre pub in extending the provisions. From these Benches, I have considerable support for the amendment.

Lord Hylton

My Lords, will the Minister say whether loud music from pubs in the early hours of the morning will be adequately covered by the expression "public nuisance"? Or should we rely on the expression "living amenity"? The noble Lord the Minister said that "amenity" was imported from town planning legislation, but is it substantially modified by adding the word "living", which I imagine would include residents sleeping in close proximity to noisy pubs?

Baroness Oppenheim-Barnes

My Lords, I agree with everything that has been said so far by my noble friend Lady Buscombe and others on this amendment. To try and narrow it down to the action that someone might take is insufficient. The occasional opening and closing of a door at four o'clock in the morning would not probably constitute a public nuisance, nor would the continuous revving up of motorcycles, because if local residents were to report that to a noise officer, he would say, "This is an intermittent noise. There is nothing I can do about it, because if I put my machinery in, it will not be consistent. Therefore, I have no powers to act and I can make no recommendations". It is important that the Minister takes account of that point as well.

Lord Peyton of Yeovil

My Lords, I strongly support my noble friend on the Front Bench and the noble Lord, Lord Phillips. The Government seem to be taking a rather cavalier attitude to all the offences covered by the simple phrase "public nuisance". People always assume that they understand the public, but many do so wrongly. There is an unusual volume of evidence showing that the public simply do not understand that cavalier attitude to the offence of public nuisance. I understand the difficulties of enforcing it, but I hope that the Government will understand that and that they will not think that "guidance" is a simple alternative to forbidding an offensive practice. The world is littered with guidance. The roads are paved with guidance and people walk all over them. I hope that the Government will have second thoughts.

Lord Avebury

My Lords, along with my noble friends, I congratulate the Minister. I also appreciate everything that the noble Baroness, Lady Blackstone, has done and the assiduity with which she attends to questions put to her in writing—offline, as it were—which have a bearing on the matters that we are discussing on the Floor of the House.

I ask the Minister to respond to one of those matters; that is, the assurances that were given on the final day on Report, on 4th March, by the noble Baroness, Lady Blackstone. She said, I recognise the genuine concern that because of the exploitation of the current A3 use class, 'superpubs' have been allowed to spring up by the back door".—[Official Report, 4/3/03; col. 779.] She went on to describe the statement in another place by the Minister, Mr Tony McNulty, about the changes to the use classes order which would put pubs and bars into a separate class.

As the superpub is the source of a great deal of the public nuisance with which we are concerned in this amendment, will the Minister tell us what has happened in the three months since that assurance was given in this House? I am extremely concerned that if that change does not come into effect until after the Bill has reached the statute book, there will an incentive for the owners of premises to rush through changes while the loophole still exists. They will be able to do that, because they will be free of the restraints on opening hours and undertakings that are provided in the existing licensing regime. Will the Minister explain how that matter will be addressed under the licensing objectives that he proposes, and what interim arrangements will be put in place to prevent users taking advantage of the loophole that will exist between the date on which the Bill comes into force and that on which the A3 use class is split into two categories?

Lord McIntosh of Haringey

My Lords, I do not know whether it is fully appreciated, but the provision for public nuisance as opposed to public amenity is being criticised from two completely opposite sides. On the one side, the noble Baroness, Lady Buscombe, criticised the broadness of the definition of public nuisance. I have already made it clear in introducing the amendment that we are using the common law definition of public nuisance. The noble Baroness thought that a broad definition was not a good idea. I suggest that the broadness of the definition is actually helpful, because it enables licensing authorities to respond to individual circumstances. If we were to narrow it to amenity—and I repeat how narrow is "amenity" for the purpose of protecting the public—we would be losing something very significant.

From the opposite direction, the noble Lord, Lord Phillips of Sudbury, described public nuisance as a very high hurdle. In the flexible way in which it can be interpreted for the purposes of the Bill—in other words, in the common law sense rather than in the sense of the 1990 Act, which he did not refer to again, but which was the basis of his argument when the Bill was in this House— "public nuisance" provides all the protection that noble Lords could wish for.

The noble Lord, Lord Hylton, asked me about loud music in the early hours of the morning. That certainly is public nuisance. As the noble Lord, Lord Phillips, pointed out, car doors slamming and people coming and going is of course a public nuisance. It does not involve public amenity. Public amenity is a narrower term that is derived from planning law.

Lord Carlisle of Bucklow

My Lords, I accept the Minister's comments about the question of continuous loud noise. That would undoubtedly qualify as "public nuisance" that would be taken into account. Surely the matters that the noble Lord, Lord Phillips, mentioned do not amount to public nuisance, but they still affect the lives of those people living in the area. So, at the one stage it is a broad definition of public nuisance, but I cannot see that people going about their normal, legitimate lives, going to a public house at 2 or 3 a.m., inevitably causing noise while doing so, can be said to be causing a public nuisance. Whereas, the interests of those people living in the area may very much need to be taken into account in deciding whether it is appropriate to have a licence in that area at all.


Lord Phillips of Sudbury

My Lords, I am also grateful to the Minister for giving way, and for the intervention by the noble Lord, Lord Carlisle. Is the Minister seriously telling the House, and if so is it on the authority of those who advise him on legal matters, that a person—or indeed many people—coming and going to a village pub at 3 a.m. in a perfectly normal way will in respect of any of them constitute a private or public nuisance? I can assure him, not merely from long practice as a lawyer who has dealt with these matters, but as someone who has looked at eight of the standard textbooks, that that use, that behaviour, does not remotely constitute on the part of any of those individuals a public or a private nuisance.

Lord McIntosh of Haringey

My Lords, there are two answers to that point. I thought I had made both of them in my original speech. The first—which the noble Lord, Lord Phillips, does not give any credit to, and I understand his position, when he says that guidance is not strong enough to protect the public in this case—is that we are talking about statutory guidance that has the authority of Parliament and has to be approved by Parliament. I have given the undertaking that the statutory guidance which will follow the passage of the Bill will cover the points made in the original amendment in this House. The noble Baroness, Lady Buscombe, read out the wording of Clause 5(2)(c). I cannot give her an absolute guarantee that that precise wording will be introduced into the statutory guidance, because the wording is always a matter—the noble Baroness is a lawyer and I am not—for parliamentary counsel, and departmental lawyers will undoubtedly wish to pick that wording to pieces. However, I can give her the absolute assurance that the wording that will appear in the statutory guidance will reflect the spirit of the amendment that was carried in this House.

Baroness Oppenheim-Barnes

My Lords, on that point, can the Minister tell the House how Mr and Mrs Bloggs, living in a house and suffering from intimate noise—either by cars or loud music—from time to time are going to find a lawyer, legal aid or a means of pursuing their case? Someone will say that this is new legislation, that the statutory guidance is not very clear and that they cannot therefore recommend legal aid or whatever. Has the Minister taken into account that factor—the way that the individual will be faced with the problem and an undermined amenity as a result?

Lord McIntosh of Haringey

My Lords, these are intractable matters and are much wider than the issues presented by the Bill. There are difficulties. What does one do about a district nurse, for example, who returns from a night call and who has to slam her car door? These are not matters for licensing legislation. If there are faults with the wider legislation, then let us address those issues. However,—

Lord Phillips of Sudbury

My Lords,—

Lord McIntosh of Haringey

My Lords, I am not even allowed to finish a sentence in this House.

Lord Phillips of Sudbury

My Lords, I apologise for interrupting the Minister's sentence and again I am grateful to him for giving way. He really is, if I may say so, in danger of misleading the House when he correlates a district nurse making a visit at 3 a.m. with the predictable and invited attendance of members of the public to a pub at 3, 4 and 5 a.m. It is not being fair to the House to present that as any sort of parallel. I repeat my question. I indicated earlier that as a matter of law the Government were arguing that a person arriving at a pub at 3 a.m.—normal behaviour, normal use of car—and coming out again is a public nuisance, although there is no anti-social behaviour, nothing that one could complain about, except the fact that it is 3 a.m. and that starting and stopping motor cars and opening and closing their doors causes a great deal of noise and light. Is the Minister seriously telling the House that that could conceivably constitute private nuisance, let alone public nuisance?

Lord McIntosh of Haringey

My Lords, I did not say that. I am saying that the provisions of the Bill, as we provide for it, with the combination of "public nuisance"—for the kind of examples that the noble Lord, Lord Hylton, gave—and the statutory guidance, which will cover the issues raised in the House of Lords amendment, cover the point, not only adequately, hut very significantly better than changing the words "public nuisance" to "public amenity". "Public amenity" is a narrower concept.

Lord Phillips of Sudbury

My Lords,—

Lord McIntosh of Haringey

My Lords, I have to be allowed to pursue my argument. "Public amenity" derives from planning law and relates to the aesthetic and visual qualities of the area. It does not cover the problems of noise and aspects of anti-social behaviour that we agree can happen from licensing legislation. By the way, I say to the noble Baroness, Lady Oppenheim-Barnes, that there is no question of legal aid. These are matters for representations to the licensing authority. I give way again.

Lord Phillips of Sudbury

My Lords, I am most grateful. The Minister is again, I am sorry to say, not using the language of the amendment that is sought to be overthrown. It does not talk about "public amenity", which I agree is a planning term. It talks about "living and working amenity". That is quite different and wholly unrelated to planning law concepts. The Minister claimed earlier that there was a remedy in respect of people who were ordinarily arriving and departing from pubs at 3, 4 or 5 a.m. I ask him again: is it the Government's position that there is a remedy under "public nuisance" for such a normal use of a car park, of a pub at 3 a.m.?

Lord McIntosh of Haringey

My Lords, I did not say that it was "public nuisance". Legitimate activities pursued at illegitimate times are matters for licensing authorities. They will be concerned with them because they will be covered in statutory guidance. I do not even know what the words "living amenity" mean. The regime that we propose in the Bill, a combination of a broad public nuisance criterion—which applies throughout the Bill—together with explicit statutory guidance covering the points raised by noble Lords when they passed the amendment in the House, is a better regime than importing from planning law a much more limited and ill-defined concept, which is the aim of the noble Lord, Lord Phillips.

Lord Phillips of Sudbury

My Lords, I promise that this will he my last intervention, but it is important. The Minister is again inadvertently misleading the House. The issue is not one of planning law at all. When the Minister says that the licensing authorities will be able to have regard to the guidance, the fact is that if "public nuisance" is the only objective dealing with amenity, local residents will not be able to make their case to the licensing authority. That is the point, because they will not be pursuing one of the four objectives in the Bill. If we claim—and I am certain that we are right—that there is no public nuisance in the normal use of a local village pub at 3, 4 or 5 a.m., then one is not even within the realms of being able to make representations. That is the point. Finally, regarding the Minister's concentration on guidance, Clause 5(3) says that the licensing authority only has to have "regard" to guidance. The Minister has not answered the point that if "public nuisance" is restored to the Bill, the guidance will not be able to reintroduce the words of our amendment that is being thrown out. The guidance must be within the context and contours of the Bill. We cannot have guidance that extends the scope of the Bill.

Lord McIntosh of Haringey

My Lords, I wish that the noble Lord would set out his arguments in his first speech instead of letting them out in dribs and drabs in this way. He has not raised the issue of what can be complained about before, which is a different point. I shall try to recapitulate on the various points that he made and to emphasise how much they are at variance with the views of the noble Baroness, Lady Buscombe, who actually tabled the amendment. She is saying something quite different.

I have agreed that intermittent ordinary behaviour is not public nuisance and that it has to be covered by statutory guidance. However, the combination of many people in the vicinity of premises and the noise generated would change the nature of ordinary behaviour so that it could become—I cannot say in any specific circumstances—a matter of public nuisance to those in the vicinity of the premises. That is a question of fact that has to be determined on individual cases. It cannot be done entirely by law.

Can appeals be made to the licensing authority? Of course the licensing authority, having followed the statutory guidance, is under an obligation to see that the conditions that it applies are adhered to. Therefore, there is a reference to the licensing authority. I was asked about the views of the industry. A recent article in The Publican Newspaper was concerned that the Government had overturned the public amenity test because they viewed it as a less onerous criterion—less onerous not for the people in the vicinity, but for the licensees. Are we on the side of the people in the vicinity or on the side of the licensees when there is a conflict?

The noble Baroness, Lady Buscombe, very reasonably and understandably, wants us to reflect the spirit of the amendment that was agreed to, and that is what we shall do. On the other hand, the noble Lord, Lord Phillips, is pursuing a point of view directly opposite to what she is saying. His view is actually confirmed by the industry as favouring licensees rather than the public.

We fundamentally disagree with the limitation of the powers of the licensing authority that would be reintroduced by the amendment overturning the Commons amendment. We now have a combination of effective statutory guidance and a strong but not particularly high hurdle of public nuisance under the common law that will meet the requirements of the licensing authorities, the licensed trade and, above all, local people. I ask the House to resist Amendment No. 5A.

Lord Avebury

My Lords, is the Minister not going to deal with my argument?

Lord McIntosh of Haringey

My Lords, I beg the noble Lord's pardon. Of course, his question about the A3 use class is nothing to do with the amendment, but the Office of the Deputy Prime Minister has confirmed that pubs will be placed in a separate use class so that planning permission will be required to convert to a superpub. The Bill will not have any effect on that until at least 2005.

12.15 p.m.

Baroness Buscombe

I thank the Minister for his response. I also want to thank the noble Lords, Lord Phillips of Sudbury and Lord Hylton, my noble friends Lady Oppenheim-Barnes and Lord Peyton of Yeovil, and the right reverend Prelate the Bishop of Peterborough for their invaluable contributions to this important and worthwhile debate. The Minister clearly feels that the noble Lord, Lord Phillips of Sudbury, and I are coming from different quarters. I actually said that "public nuisance" is open to differing interpretations, as our debate makes absolutely clear. What we need now is clarity.

To some extent, I am assured. I would have much preferred to see our amendment remain in the Bill rather than go into statutory guidance. I hear and accept much of what was said by the noble Lord, Lord Phillips of Sudbury. However, I want to trust the Minister—if I may put it that way—on the basis that the words for which we ask will appear in the statutory guidance, at least in terms of the spirit of what we are really looking for, which is a fair and proportionate balance between the lives of people who live in the vicinity of the premises and enterprise and local business.

The many examples raised today are helpful in terms of what we are trying to achieve. I hope that the Government have very much taken on board the concerns that clearly continue to exist in the House and beyond. I am grateful to the Minister for agreeing to ensure sufficient wording to meet our needs in the statutory guidance and for saying that "public nuisance" will include the definition of, we hope, something akin to "living and working amenity". On that basis, I beg leave to withdraw the amendment.

Amendment No. 5A, as an amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to.

The Deputy Speaker (Baroness Ramsay of Cartvale)

My Lords, I have to announce that there was an inaccuracy in the figures given for the previous Division, although the result remains the same. There voted "Contents", 113*, "Not-Contents", 117, so the "Not-Contents" still have it.

[*The Tellers for the Contents reported 113 votes. The Clerks recorded 112 names.]