§ 3.16 p.m.
§ Lord McIntosh of Haringey
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Licensing Bill, has consented to place her prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
§ Bill read a third time.
§ Clause 3 [Licensing authorities]:
§ The noble Lord said: My Lords, this Motion is rather like taking the plug out of a bath—one is left hoping that the water will disappear fairly quickly without too many obscene gurgles.
§ This is not a wrecking amendment. The noble Lord, Lord Davies of Oldham, seemed to think it was. It is an opportunity for the Government to do a little tailoring in another place. They could easily join up—that is one of their favourite activities—the licensing justices with the other parts of the Bill to which I have limited or no objections.1238
§ It is also an opportunity for your Lordships' House to express an opinion for the first time on an important proposal—the change from licensing justices to local authorities. There is considerable opposition to the proposal, which, as I have seen it, the Government have largely ignored or skated over. That a reliable survey showed that over 90 per cent of licensees did not like the proposals has commanded hardly a flicker of concern on the bland expressions of the Government. I hope that it will do so before we are finished today.
§ I say with respect that my noble friend Lady Buscombe carried out the difficult task of opposition with great skill, endurance and patience. I am sorry that, today, she feels herself to be under such constraints that she may not be able to support the amendment. I am sorry about that, but I hasten to say that such constraints will not weigh with me.
§ The Government have not yet said in what respect the licensing justices have failed or even disappointed. Nor have they said what prospect there is of the local authorities performing better. Many people believe, with a good deal of evidence on their side, that proceedings under the new arrangements—I am sorry to interrupt the noble Lords on the Government Front Bench who are talking to each other—will be slower and more costly and will generate more appeals because of the lower quality of decision making. Moreover, there will be a transition period that is likely to be a nightmare. At Second Reading, the noble Baroness, Lady Blackstone, said that the transition period would last for about a year or so. It will involve the recruitment and training of new staff; it will involve the preparation of long and complex policy statements, a novel exercise; and it will involve the processing of all applications by existing licensees and for existing premises. The new and the old will work side by side in what I can only believe will be an uneasy and unsteady partnership.
The reward for all that is the prospect of more local accountability and, of course, the right to drink all round the clock. In the event, that increased local responsibility will be seen to be an illusory benefit. No one should suppose that the increased local responsibility will be a free benefit for local authorities. The Secretary of State has already produced, after pressure, more than 100 pages of guidance with which, as the noble Lord, Lord Davies of Oldham, said in Committee, the local authorities will be obliged to comply. The noble Lord's exact words were:
local authorities will know the parameters within which they must work".—[Official Report, 12/12/02; col. 436.]
§ I doubt that local authorities have yet appreciated the nature of the treadmill process in which the Government invite them to take part.
§ Just now, I uttered words of respect and admiration for the way in which my noble friend had conducted the passage of the Bill. However, I am bound to say that one could hardly fail to notice the calm, patience and determination with which the noble Baroness opposite pushed her lugubrious load uphill towards the statute book. She did so with great good temper, 1239 and one must respect that. Having said that, I hope that the noble Baroness will allow me to remind her of one or two things that she said at Second Reading.
§ First, she said that there had been consultation. I believe that thousands of representations were made and that one of those representations achieved favour with the Government. One can only say, "Thank you" for that. As for the rest, there was nothing. The word "consultation" is a current buzz-word. It is nothing to do with this Bill, but, recently, there was a great project in Trafalgar Square. Taxi drivers, who know what they are talking about, were asked whether it was a good idea. They were told that their opinions would not matter, because the work would be done anyhow—and done it was, to the regret of anybody who tries to go north out of Whitehall.
§ The noble Baroness went on a flight of fancy to the extent of referring to "modern, light-touch controls". I wonder whether any of your Lordships, going through the heaps of secondary legislation, could detect anything that would deserve the description "modern" or "light-touch". Ninety per cent of it is antiquated and heavy. It is like inviting a hippopotamus to do petit point needlework. The idea of the Government doing lightly anything to do with control is far-fetched and unreal.
§ I shall be happy to be persuaded otherwise, but I do not believe for a moment that the Government have even begun to envisage the difficulties that that transition will involve. Some people will have a great amount of learning to do, while we have the galling experience of seeing those who know how to do the job withdraw.
There is one last quotation from the noble Baroness that I cannot forbear to remind your Lordships of. In cheering the measure on and boasting of its doubtful merits, she said:
It will also remove perverse influences on drinking culture".—[Official Report, 26/11/02: col. 640.]
§ I am tempted to ask the noble Baroness—to whom I would be willing to listen for a long time—to explain with some clarity what those "perverse influences" are and from whom they come. If she went on to define our "drinking culture", I would be more than grateful.
§ As things are, I see little prospect of the noble Baroness persuading me at the end of the debate not to seek the opinion of your Lordships' House. I beg to move.
§ 3.30 p.m.
§ Lord Redesdale
My Lords, the noble Lord, Lord Peyton of Yeovil, said that he intends to test the opinion of the House. It will not surprise the Government to learn that we would not support Amendment No. I. That is not because, as the noble Lord, Lord Peyton, said, the issue has been swept under the carpet and has not been discussed. In fact, it was discussed at Second Reading when the noble 1240 Baroness, Lady Buscombe, made some interesting points about the role of the magistracy. It is unfortunate that the matter was not raised in Committee. I understand the noble Lord, Lord Peyton, missed his amendment in Committee and we missed the opportunity—
§ Lord Peyton of Yeovil
My Lords, I thank the noble Lord for giving way. I repeat the apology that I have already made for my careless mistake. My only excuse was that there was a jump at incredible speed in our proceedings, which took me quite by surprise.
§ Lord Redesdale
My Lords, I apologise to the noble Lord. I was waiting for him to rise at that time. But perhaps proceedings on a Statement gave an indication that we were moving more slowly than we actually were.
I believe that Amendment No. 1 is, if not a wrecking amendment, in the spirit of a wrecking amendment, although the noble Lord has denied that. It would go to the very heart of what the Bill is about. It has been our party policy for some time to remove the ability to deal with licensing issues from the magistracy to the local authority.
The debate that has taken place on the matter in this House is worth repeating, especially if the noble Lord, Lord Peyton, is to take this amendment to a Division. Magistrates have done a wonderful job, but there is a change in the nature of magistrates. The noble Lord, Lord Brooke, expressed concern to me that some magistrates dealing with licensing in Soho did not live in Soho. Therefore, he found the argument that magistrates can be local somewhat surprising in that instance. He felt that they did not represent the views of local people.
The noble Lord, Lord Peyton, also said that 90 per cent of publicans are against the proposal.
§ Lord Redesdale
My Lords, of course I cannot. I would be incredible if I could tell your Lordships how many councillors live in each borough. In a survey of 1,000 publicans, 90 per cent said that they were unhappy at local authorities taking over as licensing authorities. We have some sympathy with that point of view. The issue of public entertainment licences has been raised many times in this House. It has caused more unhappiness among publicans and the public than almost any other issue. Music is the issue that we have addressed vociferously throughout the stages of the Bill. However, the fact that 90 per cent of publicans would oppose the change was addressed when the Government discussed setting time limits and clear guidelines which would regulate the time that it would take for licensing decisions to be reached. We were happy that the Government put that viewpoint forward.
1241 There is much in the Bill with which we are unhappy. The Government have been on the receiving end of many Divisions. However, if we were to support this amendment, it would be to try to kill the Bill in all but name, and I believe that there is some merit in the Bill.
§ Lord Carlisle of Bucklow
My Lords, I want to speak briefly in support of my noble friend Lord Peyton. It has been said by Members on the Government and Opposition Front Benches that this is, indeed, an important Bill. It is the first serious attempt to reform the licensing laws so far as they relate to the sale of alcohol or the provision of entertainment for many years. It provides many new powers.
Equally central, simple but important, is the decision of who is best able to be the licensing authority to implement the powers given by this Bill. Is it to be the magistrates who for years have had that responsibility as regards alcohol licensing? Or is it to be the local authority? For four simple but important reasons, I believe that the magistrates are the right people to remain the licensing authority.
The first reason is the experience of the magistrates. I declare perhaps a past rather than a present interest as someone who appeared from time to time in licensing applications. I have never heard any serious criticism made of the conduct of licensing magistrates. Nor, indeed, do I believe that the Government have advanced, during the course of the Bill, any such arguments against them. They have experience which a local authority does not have.
The second reason is that it is inevitable that the Bill will lead to a great many public hearings. By their knowledge and their experience, magistrates are well versed in conducting public hearings. Local authorities have not had that experience. Public hearings will be necessary when anyone who is a relevant person takes objection to an application that is made. Throughout the years, magistrates have built a consistency in this matter—by knowledge, by experience and by their ability to hear witnesses and evaluate evidence. That knowledge and experience is not open to local authorities.
The third reason is that an application, or the importance of an application, will often go wider than the areas of a single local authority. I believe that the magistrates have a greater knowledge of a wider locality than that which is open to the individual member of a local authority.
Fourthly, and most importantly, is the recognised impartiality of magistrates. I believe that the recognised impartiality of the magistrates is inevitably far greater than that of the local authority. The local authority, which, by its very nature, is subject to election and to votes, is bound to be liable, or accused of being liable, to pressures which cannot be put on an independent judiciary.
For those four reasons, I hope that the House will support the noble Lord, Lord Peyton, today. I do not believe that Amendment No. I is a wrecking amendment, as the noble Lord, Lord Redesdale, said. Clearly, it will require consequential amendments. 1242 Those amendments could well be tabled in another place. It might be a good idea for another place to have an opportunity to remember what a Committee stage should be.
§ Lord Taylor of Blackburn
My Lords, I disagree with the noble Lord, Lord Peyton, on this matter. I served as a licensing magistrate for 25 years. I also served as a member of a local authority for 25 years. I look at issues no differently when adjudicating as a licensing magistrate or when sitting as a member of the local authority. The same person is looking at the issue with the same set of eyes and listening to the same evidence.
During the 25 years that I served as a magistrate, their role and duties changed greatly. Therefore, magistrates do far more now than when I first sat on various Benches. It is more sensible for local authorities to undertake this responsibility because it would fit well with the rest of their licensing duties. In proposing this, I am sorry to say that the noble Lord, Lord Peyton, is completely out of date as regards the current situation.
My friends sitting on magisterial benches and working in local authorities all tell me that this is the way they would like it to go. I support them.
§ Baroness Howe of Idlicote
My Lords, I support the amendment moved by the noble Lord, Lord Peyton, but alas without his humour and wit. I, too, want what I would regard as a more satisfactory explanation of why this change is being sought. I hear vi hat the previous speaker has to say, but it is certainly not my experience, nor the experience of many of my friends who are magistrates. They are not so overworked that they could not continue in this role as well as taking on any extension of duties required under the Bill.
I must reinforce my apology. I am afraid that I was in hospital when the debate on Second Reading was held. I hope that the House will forgive me for not being present. I read all the speeches and was particularly impressed by the contribution of the noble Baroness, Lady Buscombe. She made the point extremely clearly but rather to my surprise was not supported. That allowed the Minister off the hook somewhat when he came to reply.
I turn to what was said by the noble Lord, Lord Carlisle. It is the merits of independence, objectivity and what magistrates bring to their local communities that are so important. The point made that magistrates are not local people is absolutely not the case. Perhaps they do not live in Soho—they may live just around the corner—but it is certainly my experience that magistrates are local people and much affected by their local communities. I was surprised by the extraordinary comment of the noble Lord, Lord Davies of Oldham, in his response to the debate that magistrates are accountable to no one but themselves and to the system by which they are appointed. I should have thought that they were very accountable to local communities and, indeed, accountable to the law they administer.
1243 If judicial functions are to be introduced, such as the prevention of local nuisance in a community, I should have thought that this was yet another reason why the judicial role of magistrates would be most effective, working in, as it were, the field situation. I understand that appeals can be made against what is proposed.
I shall listen to the Minister's response before deciding which way to vote if the matter is pressed to a Division. I should like to think that more consideration will be given to this proposal. We hear that consultation has taken place. What was the reaction of the Magistrates' Association to the proposal? Does it welcome the change with open arms? Have the Government made any estimate of the extra cost likely to be incurred as a result of this change? Comments from local magistrates' Benches that I have heard indicate that local authorities are likely to face a considerable increase in costs for premises, new staff and training. I shall repeat a point made by many noble Lords on Second Reading; the exercise may well take a great deal longer than the six months originally proposed.
I shall leave it at that because we are facing a busy day. However, I look forward even more to what may be said to convince me that my points are irrelevant.
§ 3.45 p.m.
§ Lord Brooke of Sutton Mandeville
My Lords, the noble Lord, Lord Redesdale, did not take my name in vain. The fact that I am on my feet presumably indicates that. But he did refer to me and therefore I seek to add a footnote to his remarks. In conversation with my noble friend Lord Peyton, I have advised him of the particular circumstances.
I indicated in Committee that residents in the West End, when appearing before magistrates, have been told by those magistrates when coming to their conclusions that anyone who chooses to live in the West End should know what they are going to experience. Such remarks were hurtful to those who appeared at the hearings. They have lived in Soho all their lives and therefore had not in fact lived anywhere else. It was not a decision on their part to come and live in Soho.
I am conscious that, in many of our debates on the Bill, I have concentrated on the Soho experience and the experience between Covent Garden and Bayswater, but I am also conscious that the Select Committee in another place is taking evidence from residents in Soho to find out what their experience has been like on the ground and in their own homes.
My noble friend Lord Onslow asked whether any councillors live in Soho. Some time ago there were two independent councillors in Soho, both of whom lived in the ward. An accusation was levelled that the party I represent in this House was not adequately representing residents in the West End. Latterly, ever since that intervention back in the 1970s, Westminster City councillors for the West End ward have lived in Soho or in Mayfair, the other constituent part of the ward. Although certain boundaries were recently 1244 expanded, so that someone does live outside, there is a strong record of councillors living within the ward and therefore experiencing what goes on.
By contrast, I think I am right in saying that only one magistrate who takes part in the hearings in Westminster actually lives in the City of Westminster. It is clear that he is living outside the inner city experience. That is what makes so deeply wounding the comments aimed at residents of Soho to the effect that they should not come to live in Soho if they do not want the noise; the magistrate himself has not had the experience.
I wish to say to my noble friend Lord Carlisle of Bucklow that, when contested, a large number of hearings are held on entertainment licences in Westminster. So it is not the case that the local authority is without experience of carrying out such hearings.
Finally, I have conducted an extremely civilised correspondence with one brewer, but I am not conscious of having received any representations from the Magistrates' Association. Therefore it does not seem to me to have been an issue quite so central to the Bill as perhaps has been suggested.
§ Lord Stoddart of Swindon
My Lords, when the noble Lord, Lord Peyton, introduced his amendment, he said that it was not a wrecking amendment. Of course he is absolutely right, although it would radically alter the Bill. I think that it would probably alter it for the better and therefore I shall support it.
I must apologise to the House that this is the first time that I have intervened on the Bill. I have been active on other Bills and thus have not been able to take as much interest in this legislation as I would have liked.
My reason for speaking today is that I have received a letter from Arkells Brewery, a small, independent brewing firm based in Swindon, a constituency I once had the honour to represent in another place. The brewery was established in 1843 and thus has been operating for 160 years. It has expressed serious concerns about the transfer of licensing powers from magistrates to local authorities. The brewery, along with many others, fears that the local authority will not be as fair and impartial as the magistrates have been. Furthermore, local authorities are subject to electoral pressures as well as pressures from large organisations.
Arkells and other small businesses fear that local councils will be judge, jury and chief witness for the prosecution, and that they will ride roughshod over the interests of the little man. I think that those fears may be justified. They have not been assuaged by debate so far. Arkells and other breweries still feel that the Bill will injure their interests. This last ditch attempt by the noble Lord, Lord Peyton—in this House anyway; another place can, of course, consider the matter—to revert to licensing by local magistrates deserves proper consideration. Indeed, it is receiving it: the debate so far has been enlightening and interesting.
1245 I appreciate that it has been the long-term aim of the Home Office and the Lord Chancellor's Department to phase out the lay magistracy. They deny it; but I 'was so concerned about this being the aim of the previous government that I went to see the noble and learned Lord, Lord Mackay of Clashfern, to remonstrate with him on what I believed to be a threat to the local magistracy. He assured me that there was no such policy and that the government at that time believed in the lay magistracy. But he failed to convince me that I was wrong.
Events since then have confirmed what I said to the noble and learned Lord, and what I still believe. There has been the centralising process in regard to magistrates' courts and magistrates' courts committees, the transfer of functions to magistrates' clerks, the discouragement of people from joining the Bench by loading magistrates with training schedules which senior paid judges do not have—
§ Lord Redesdale
My Lords, I apologise for interrupting the noble Lord's dissertation on magistrates, but in Committee we on these Benches welcomed the fact that the magistrates will act as the court of appeal for any licensing decision. So the idea that magistrates are being removed totally from the loop is perhaps unfortunate. Magistrates will have a central role in the implementation of the Bill's provisions, given the many disputes that will probably arise. They will play a full and active role in adjudicating on disputes.
§ Lord Stoddart of Swindon
My Lords, as the noble Lord, Lord Peyton, has pointed out, one of the problems will be the transitional arrangements. The breweries—I have mentioned Arkells—are not satisfied that they will receive a proper hearing in the first place; and they are concerned that in the last analysis the magistrates will not be able to overturn, or perhaps will not wish to overturn, the decisions arrived at by the local authorities. So, in spite of the discussions that have taken place in this House, businesses—small breweries in particular—are not satisfied that they will get a fair hearing.
§ Lord Stoddart of Swindon
My Lords, did someone say something? If noble Lords want to intervene, please will they do so?
§ Lord St John of Fawsley
My Lords, I was totally silent, but someone of greater daring than myself called out "Why?". While I would never have dared or presumed to ask the question, I should be interested in the answer.
§ Lord Stoddart of Swindon
My Lords, the answer will have to be given by the small breweries themselves. Indeed, that is the answer that I have received from Arkells brewery: it is not satisfied with the arrangements under the Bill, which it believes will not assist it in its processes in the future. I hope that that helps the House.
1246 I apologise again for not being able to take part in all the previous proceedings on the Bill. I repeat that I shall support the amendment moved by the noble Lord, Lord Peyton.
§ The Earl of Liverpool
My Lords, I add my support to that received by the noble Lord, Lord Peyton. I very much hope that he may yet persuade my noble friend Lady Buscombe to support us. I know that she is in some difficulty over this matter, but she did speak on it with some feeling at Second Reading so we shall hope for the best. Certainly, my noble friend has support from those on the Benches behind him. I am sorry that the Liberal Democrats do not at this point feel able to support the amendment. They may yet be persuaded.
The Government's only justification for council control of licensing seems to be local accountability. But the draft guidelines now leave councils with very little discretion, and controversial cases will be appealed to the magistrates anyway. They will have the final say.
My noble friend Lord Peyton made a further important point; namely., that 94 per cent of licensees want to keep the control with the magistrates—and with good reason. Magistrates already hold records of every licensee and every pub in the country. They have the knowledge—and they are apolitical, whereas local councils most certainly are not. There is a dangerous journey into the unknown. This provision could cause chaos in the six-months setting up stage. The only certainty is that licensing fees are guaranteed to increase at least tenfold. I believe that "if the system ain't broke, don't fix it". I very much hope that my noble friend will receive support for his amendment.
§ The Earl of Mar and Kellie
My Lords, the noble Earl has just described this as a "journey into the unknown". He need only go north of the Border to find that what the Bill proposes is very similar to the status quo in Scotland.
§ The Earl of Mar and Kellie
My Lords, it exists as the status quo in Scotland and is not, therefore, a journey into the unknown. Are noble Lords concerned about policy leadership from Scotland?
§ The Earl of Onslow
M y Lords, this is the wonderful thing about devolution. We can be lectured by the noble Earl, Lord Mar and Kellie, on how the Scots run their pubs.
§ The Earl of Onslow
My Lords, I accept that. But how we run our pubs has nothing whatever to do with him.
§ The Earl of Onslow
My Lords, I am flattered that the noble Earl is interested in what I propose to say.
1247 I completely agree with the Government on their aim; namely to deregulate and make pub licensing easier. How that can be done with a Bill which is 170-plus pages long, I do not know. Surely all they needed to do was to produce a Bill with a one-line clause stating: "Magistrates shall provide 24-hour licensing unless there is a reason not to do so". Then all the problems would have been dealt with simply. The magistrates do the job quite well at the moment.
To take up the point raised by the noble Lord, Lord Brooke, I intervened on the point made by the noble Lord, Lord Redesdale, about magistrates not living in Soho because I wondered whether he knew the number of councillors. It was a question of seeking information, not of making a political point against one or another. The magistrates have carried out the task well up to now. I know that there is the wonderful story of Captain Bunbury, whose forebears invented the Derby. He slept on the Bench after lunch and said: "Take six months"; and the man was carted down to the cells. The clerk told him that all the man was doing was applying for a half-hour extension to his licence on Sunday afternoon. That was in the 1930s, and things have moved on a little since then.
On the whole, the system has worked well. Of course we want to liberalise, but I do not think liberalisation will have an effect on yob drinking. The Nordic races have been into that for a long time: Garibaldi sent back his English volunteers because they insisted on getting drunk in Campania. I cannot see that the Naples kings ran a licensing system to which people adhered.
Liberalise by all means, but leave licensing with the magistrates because it makes more sense. Having a Bill of 170 pages containing all the stuff about licensing and music licensing is not liberalising but complicated and expensive to administer.
§ 4 p.m.
§ Lord Selsdon
My Lords, I had not intended to speak but suddenly I remembered my inglorious past. I was involved in pop music and licensing when I had two jobs. I worked for six years as chairman of the Greater London Council and South East Council for Sport and Recreation. I also chaired a body called an arena to which about 12,500 people came in the evening.
I spent a lot of time dealing with licensing, often with special licences for sporting events. As your Lordships will know, the United Kingdom has 85 governing bodies for sport and each sport has to be treated differently. I found to my surprise that often I would be in a private room with the police, including the drugs squad, local authority environmental health officers, sometimes carrying their machine for measuring noise, other local authority representatives, the promoter and the owners—all representing a range of interests. Dealing with so many interests is difficult. Local authorities have a lot to do anyway, such as dealing with the enhancement of people's enjoyment of their dwelling place and health issues, but they do not have the sort of experience that has been gained by magistrates.
1248 My first involvement was with a group called Duran Duran. It was something to do with my friend Sir Edward Heath, because they used to sing something called "Sailing". They arrived at one event; all the licences were in place and the police were trying to stop drug dealing and prevent alcohol from getting to those under age. Suddenly, halfway through, everyone lit candles. I did not know that when that group reached a certain point in their act, everyone in the audience would have a candle in their hand. The group would sway backwards and forward on the stage, which looked like it was threatening to collapse. I was then asked what group was on next. It was called something like Take That, and I said "Who?", and they said -No, not The Who, it's Take That".
I also found that because certain sporting events had water nearby, we had to have lifeguards, which the local sailing club would provide. But the local authority did not know anything. As this broadened out to cover Mecca, with ice-skating rinks around the country, I found that the people who knew about it were the magistrates. As the noble Lord, Lord Taylor of Blackburn said, it would be wonderful if magistrates and councillors could have that dual schizophrenic knowledge.
I understand what the Government are trying to do, and ultimately it would be sensible for these matters to be covered by local authorities. There is a very steep learning curve and that learning curve is not possible. There will also be, as I found, conflicts of interest between a local authority wishing to promote or stop something and other bodies wishing to advance it.
The noble Lord, Lord Peyton, has raised an important issue. I believe this should he left with the magistrates unless and until the alternative can demonstrate that it has the ability to follow duty of care through. Your Lordships must consider the personal liabilities that often arise when an event takes place and there is an accident. It is a minefield and we do not have enough minesweepers in local authorities.
§ Lord Armstrong of Ilminster
My Lords, I support the amendment moved by the noble Lord, Lord Peyton of Yeovil. As I listen to the debate and receive correspondence from outside, I am impressed by the strength of opposition to the change proposed by Her Majesty's Government. I am impressed by the fact that, as the noble Lord, Lord Carlisle, has put it, the experience, independence and objectivity of the magistrates—the licensing justices—would be lost. I have heard no clear explanation of the benefits that would accrue from making this change or whether those benefits would outweigh the evident costs which would be incurred as a result. Although, like my noble friend Lady Howe, I shall listen with interest to the Minister's speech, as at present advised, I am minded to support the amendment.
§ Lord Hooson
My Lords, as I already indicated to my colleagues last week, I have considerable sympathy for the amendment proposed by the noble Lord, Lord Peyton. I kept an open mind about the matter until I heard the debate today, and now I am convinced that I should support him.
1249 I have no experience of licensing at the present time, but in my early days at the Bar I did a great deal of licensing work. I always found that magistrates, whatever their individual political complexion, were pretty well versed and trained in taking a judicial approach on the matters before them. It therefore seems to me that if you are to have a major change—changing the tribunal that decides the licensing in the first instance—it should be left with the magistrates rather than the local authorities, particularly given that voters these days do not show any great enthusiasm for voting in elections for local authorities. We should bear that in mind when we consider a major change of this kind.
Overall, the onus must be on the Government and their supporters, including most of my colleagues on these Benches, to make out a positive case for transferring the authority to the local authority rather than leaving it with the licensing bench. I know there will be a right of appeal in most circumstances, but I do not think that the Government have really made their case.
§ Lord Davies of Oldham
My Lords, the noble Lord, Lord Peyton, bemoaned the fact that we have reached this late stage in the Bill before being able to debate this fundamental issue. It certainly is fundamental, as the noble Lord, Lord Redesdale, indicated. If this is not a wrecking amendment, it is pretty close, because it runs counter to the whole thrust of the Bill.
It is not for the Government to put down amendments to their own Bill to clarify matters. Clarifying the Bill is a matter for the Opposition. We were not able to debate these issues in Committee because noble Lords were not in their place to move the Motion and, on the second occasion, being late in the evening, it was thought the debate was unsatisfactory. I had hoped at that stage to deploy the Government's arguments sufficient to persuade the noble Lord, Lord Peyton, that further debate was not necessary, but as he had indicated in his opening speech that, because of the lateness of the hour, we would have a debate on Third Reading, come what may, a certain amount of hot air was wasted on that occasion. But at least we have the chance today to address the Government's case.
Let me make one thing absolutely clear. As I am grateful to the noble Lord, Lord Redesdale, for saying, the magistrates are not being taken out of the licensing system entirely. If decisions are taken that so affront those affected, they can appeal to the magistrates. They certainly have a role. That is because we all respect the role that they have played in the past in alcohol licensing. I respect all the contributions today that have paid due tribute to their work.
Let me tell the House why the amendment cannot be supported by anybody who is judging the issue intelligently and sensibly. This is not about just one licensing regime—the sale of alcohol, for which magistrates had responsibility in the past; it is about regulating six regimes, five of which are in the purview of local authorities at the moment. Of course magistrates have substantial experience of licensing 1250 and a proud record of having played their part over many decades. However, that applies only to alcohol licensing. The licensing of cinemas, theatres, night cafés, late-night refreshment and public entertainment—all of which are central to the Bill—are the responsibility of local authorities.
The Government are interested in deregulation. Some noble Lords have said that the industry has anxieties about the Bill. The noble Lord, Lord Stoddart, said that one or two small breweries had reservations about it. The industry has taken the Bill in its totality. They recognise that it is a chance to produce an integrated system of licensing that will cut down red tape significantly—reducing regulation is the purpose of the Bill—and, in doing so, will concentrate all licensing in one regime. The choice is whether it should be under the magistrates, who currently have responsibility in one area, or under the local authorities, who have responsibility for regulation in five of the areas. There are clear reasons, which I shall hope to deploy in due course, why it should be local authorities. Let us not be under any illusion that this is just a transfer of one licensing regime from magistrates to local authorities. That is not so.
Secondly, the amendments would make a wholesale and unjustifiable change to the Bill. Our proposals are straightforward. We believe that we will introduce better and more effective regulation that relates to the needs of the community by investing in local authorities a further licensing area in addition to the five for which they are already responsible.
There is a common misunderstanding about the status of the licensing justices. They do not sit as a magistrates' court. They were established by statute as an administrative committee, elected by the magistrates in the relevant petty sessions area. I am grateful to my noble friend Lord Taylor for pointing out the crucial point that magistrates are not bound by the normal rules of evidence and are technically free to receive and consider hearsay evidence and petitions.
I make those points to stress that the role magistrates play is not judicial, but administrative, although in certain circumstances their role will have a quasi-judicial quality. If Parliament had wanted a judicial process from magistrates, it would have given the job to the magistrates' courts, not to the licensing justices.
In our normal court procedures, an adversarial contest takes place. Two or more competing parties put their cases and, from a neutral position, the tribunal decides the case on the merits of the arguments. The licensing process is entirely different. There are competing parties representing different vested interests, but the deciding body's role is not a neutral one, simply deciding an issue between competing parties. The deciding body has to represent the needs of the wider community in decisions on licensing and decides any matter under the law in the wider interests of the community, balancing the competing interests against that wider interest.
1251 Once it is accepted that licensing is a regulatory and administrative process—not a judicial one—undertaken in the interests of the community, the question arises as to which body should most appropriately represent those interests. As my noble friend Lord Taylor said, licensing justices are accountable only to the magistrates who elect them to the licensing committee and to the higher courts. That cannot be said to provide democratic accountability. I stress democratic accountability, because the administrative processes should be in the hands of democratically elected representatives of the local electorate and regulatory processes should be entrusted to those best placed to undertake the balancing exercise on an informed basis of what is in that wider community interest on licensing decisions.
The Government are not the only ones who have drawn that conclusion about the scope for reducing red tape by consolidating the licensing system and about the principle of accountability. The Better Regulation Task Force, on behalf of the industry, recommended to the Government that the local authorities should have that role in the future.
The noble Lord, Lord Peyton, wondered whether the local authorities recognise the treadmill on which they are going to be placed when they take up the role. Magistrates have followed the same treadmill. The guidance that is to be applied to the local authorities in conducting their licensing role has been directed towards magistrates in their administrative role under the existing system. Nothing is changing there.
The noble Baroness, Lady Howe, emphasised the strength of the magistrates' position. I greatly appreciate the work that has been done by many colleagues in this House in that role, but it has been limited to one area. As the noble Lord, Lord Brooke, emphasised with the greatest possible clarity, these issues affect the local community. It is entirely right and proper that the local community should have the chance to have the issues decided in their name by a body that is responsible to them.
The basis of the Bill is to reduce red tape and bring six licensing regimes—five of which are currently within the purview of the local authority—into one consolidated licensing procedure. The purpose of the Bill is not to introduce 24-hour drinking; it is to increase flexibility on licensing hours. It is a canard to say that the Bill introduces 24-hour drinking in every pub in the country. The decision on when pubs will be open and how much they use the flexibility afforded by the Bill will be made by the licensees, who will have due regard to the market demand. As we all know, the vast majority of pubs will not stay open into the wee small hours of the morning, because the licensees know that the numbers of people who would visit at those times would make it uneconomic.
The Government's position is clear. This is a regulatory measure aimed at reducing red tape. It is a consolidation measure, vesting the authority with the local authorities on the grounds that I have put forward. That is not in any way to decry the role of the 1252 magistrates in the past. That is why the magistrates will continue to play the role of the court of appeal against decisions taken by the local authority.
I am pleased that we have had this debate. We ought to have had it on Second Reading or in Committee, many days ago. It is a bit late in the day to be doing it now. I hope that I have clarified the issues sufficiently for the noble Lord to think twice about pressing the issue to a vote.
§ Lord Peyton of Yeovil
My Lords, I have no difficulty in assuring the noble Lord, Lord Davies of Oldham, that he has not moved me an inch, except in further entrenching my determination to seek the opinion of your Lordships' House. I do not want to mention everybody who has kindly spoken. I naturally applaud more loudly and am much more grateful to those who have supported the amendment. I am very disappointed, although not at all surprised, to hear the noble Lord, Lord Redesdale. He is so charming and so nice, but he ends up so disappointingly. I have to tell him that on this occasion I found his noble friend Lord Hooson a light that shone in the darkness. I hope that the darkness will not extinguish him ever.
I understand and sympathise with the position of my noble friend Lady Buscombe. She felt obliged to maintain a silence, but I should be happy if she would be so kind as to communicate that there was an element of disappointment that she should be forced to do so. I do not ask her to acknowledge that now, however.
I had a moment of terrible anxiety when my old friend, the noble Lord, Lord Taylor, got to his feet, because I thought that he was going to agree with me. That would have shattered my confidence.
I was particularly grateful to my noble friend Lord Carlisle, who got it absolutely clear. I hope that the noble Baroness, Lady Howe, will also accept my thanks for her support. I also thank the noble Lord, Lord Armstrong; he spoke from the Cross Benches, but I would refer to him as my noble friend.
I regret deeply that it is unlikely in the circumstances that this Division will be a remarkable victory. Nevertheless, I have no hesitation in asking for the opinion of your Lordships' House.
§ 4.22 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 108; Not-Contents, 173.1254
|Division No. 1|
|Aberdare, L.||Brightman, L.|
|Ampthill, L.||Brookeborough, V.|
|Armstrong of Ilminster, L.||Burnham, L.|
|Arran, E.||Butterworth, L.|
|Beaumont of Whitley, L.||Caithness, E.|
|Blaker, L.||Campbell of Alloway, L.|
|Bridges, L.||Carlisle of Bucklow, L. [Teller]|
|Carnegy of Lour, B.||Marsh, L.|
|Carrington, L.||Masham of Ilton, B.|
|Cavendish of Furness, L.||Mayhew of Twysden, L.|
|Chalfont, L.||Molyneaux of Killead, L.|
|Chorley, L.||Monson, L.|
|Colville of Culross, V.||Montagu of Beaulieu, L.|
|Colwyn, L.||Mowbray and Stourton, L.|
|Craig of Radley, L.||Moynihan, L.|
|Crathorne, L.||Murton of Lindisfarne, L.|
|Crickhowell, L.||Naseby, L.|
|Croham, L.||Newton of Braintree, L.|
|Dean of Harptree, L.||Northbourne, L.|
|Deedes, L.||Northesk, E.|
|Dundee, E.||Oakeshott of Seagrove Bay, L.|
|Eccles of Moulton, B.||O'Cathain, B.|
|Eden of Winton, L.||O'Neill of Bengarve, B.|
|Elles, B.||Onslow, E.|
|Elliott of Morpeth, L.||Park of Monmouth, B.|
|Elton, L.||Peyton of Yeovil, L. [Teller]|
|Finlay of Llandaff, B.||Pilkmgton of Oxenford, L.|
|Fookes, B.||Plumb, L.|
|Forsyth of Drumlean, L.||Plummer of St. Marylebone, L|
|Fowler, L.||Rawlinson of Ewell, L.|
|Gardner of Parkes, B.||Rees, L.|
|Geddes, L.||Renton, L.|
|Gilmour of Craigmillar, L.||St John of Fawsley, L.|
|Gray of Contin, L.||Saltoun of Abernethy, Ly.|
|Henley, L.||Selsdon, L.|
|Hooper, B.||Sharples, B.|
|Hooson, L.||Shaw of Northstead, L.|
|Howarth of Breckland, B.||Sheppard of Didgemere, L.|
|Howe of Aberavon, L.||Simon of Glaisdale, L.|
|Howe of Idlicote, B.||Skelmersdale, L.|
|Hylton.L.||Soulsby of Swaffham Prior, L.|
|Jellicoe, E.||Stewartby, L.|
|Jopling, L.||Stoddart of Swindon, L.|
|Knight of Collingtree, B.||Swinfen, L.|
|Laing of Dunphail, L.||Thomas of Gwydir, L.|
|Lamont of Lerwick, L.||Trefgarne, L.|
|Lane of Horsell, L.||Trumpington, B.|
|Lang of Monkton, L.||Vinson, L.|
|Liverpool, E.||Waddington, L.|
|Lucas, L.||Wade of Chorlton, L.|
|Lyell, L.||Walker of Worcester, L.|
|Maginnis of Drumglass, L.||Walpole, L.|
|Mar, C.||Warnock, B.|
|Marlesford, L.||Wright of Richmond, L.|
|Ackner, L.||Campbell-Savours, L.|
|Acton, L.||Carlile of Berriew, L.|
|Addington, L.||Carter, L.|
|Alderdice, L.||Christopher, L.|
|Alton of Liverpool, L.||Clark of Windermere, L.|
|Andrews, B.||Clarke of Hampstead, L.|
|Archer of Sand well, L.||Clement-Jones, L.|
|Ashley of Stoke, L.||Clinton-Davis, L.|
|Ashton of Upholland, B.||Cobbold, L.|
|Avebury, L.||Cohen of Pimlico, B.|
|Barker, B.||Corbett of Castle Vale, L.|
|Barnett, L.||Crawley, B.|
|Bassam of Brighton, L.||Darcy de Knayth, B.|
|Berkeley, L.||David, B.|
|Bernstein of Craigweil, L.||Davies of Coity, L.|
|Billingham, B.||Davies of Oldham, L.|
|Blackstone, B.||Dean of Thornton-le-Fylde, B|
|Borrie, L.||Derby, Bp.|
|Bradshaw, L.||Desai, L.|
|Bragg, L.||Dholakia, L.|
|Brennan, L.||Dixon, L.|
|Brooke of Alverthorpe, L.||Dormand of Easington, L.|
|Brooke of Sutton Mandeville, L.||Dubs, L.|
|Brookman, L.||Elder, L.|
|Bruce of Donington, L.||Evans of Parkside, L.|
|Burlison, L.||Evans of Temple Guiting, L.|
|Ezra, L.||Orme, L.|
|Falkland, V.||Parekh, L.|
|Farrington of Ribbleton, B.||Patel of Blackburn, L.|
|Fitt, L.||Paul, L.|
|Fyfe of Fairfield, L.||Peston, L.|
|Gale, B.||Plant of Highfield, L.|
|Gilbert, L.||Ponsonby of Shulbrede, L.|
|Gladwin of Clee, L.||Prys-Davies, L.|
|Goldsmith, L.||Radice, L.|
|Goodhart, L.||Ramsay of Cartvale, B.|
|Gordon of Strathblane, L.||Randall of St. Budeaux, L.|
|Goudie, B.||Rea, L.|
|Gould of Potternewton, B.||Redesdale, L.|
|Graham of Edmonton, L.||Rendell of Babergh, B.|
|Gregson, L.||Rennard, L.|
|Grocott, L. [Teller]||Richard L|
|Guildford, Bp.||Richardson of Calow, B.|
|Hamwee, B.||Rodgers of Quarry Bank, L.|
|Hardy of Wath, L.||Rooker, L.|
|Harris of Haringey, L.||Roper, L.|
|Harris of Richmond, B.||Russell, E.|
|Harrison, L.||Sandberg, L.|
|Haskel, L.||Sawyer, L.|
|Hayman, B.||Scotland of Asthal, B.|
|Hilton of Eggardon, B.||Scott of Needham Market, B.|
|Hogg of Cumbernauld, L.||Sharp of Guildford, B|
|Hollis of Heigham, B.||Sheldon, L.|
|Howells of St. Davids, B.||Sheppard of Liverpool, L.|
|Hughes of Woodside, L.||Shutt of Greetland, L.|
|Hunt of Kings Heath, L.||Simon, V.|
|Irvine of Lairg, L. (Lord Chancellor)||Smith of Clifton, L.|
|Smith of Gilmorehill, B.|
|Janner of Braunstone, L.||Smith of Leigh, L.|
|Jay of Paddington, B.||Stallard, L.|
|Jones, L.||Stone of Blackheath, L.|
|Jordan, L.||Strabolgi, L.|
|Judd, L.||Strange, B.|
|King of West Bromwich, L.||Symons of Vernham Dean, B|
|Kirkhill, L.||Taylor of Blackburn, L.|
|Lea of Crondall, L.||Thomas of Gresford, L.|
|Levy, L.||Thomas of Macclesfield, L.|
|Livsey of Talgarth, L.||Thomas of Walliswood, B.|
|Lockwood, B.||Thomson of Monifieth, L.|
|Lofthouse of Pontefract, L.||Tomlinson, L.|
|Macdonald of Tradeston, L.||Tope, L.|
|McIntosh of Haringey, L. [Teller]||Tordoff, L.|
|MacKenzie of Culkein, L.||Turner of Camden, B.|
|Mackenzie of Framwellgate, L.||Uddin, B.|
|McNally, L.||Varley, L.|
|Maddock, B.||Wallace of Saltaire, L.|
|Mar and Kellie, E.||Walmsley, B.|
|Mason of Barnsley, L.||Watson of Richmond, L.|
|Massey of Darwen, B. Merlyn-Rees, L.||Whitaker, B|
|Methuen, L.||Whitty, L.|
|Miller of Chilthorne Domer, B.|
|Milner of Leeds, L.||Wigoder, L.|
|Mitchell, L.||Wilkins, B.|
|Morgan, L.||Williams of Crosby, B.|
|Morris of Aberavon, L.||Williams of Elvel, L.|
|Newby, L.||Williams of Mostyn, L. (Lord Privy Seal)|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.33 p.m.
§ Clause 14 [Authorised persons, interested parties and responsible authorities]:
Lord Avebury moved Amendment No. 2:
Page 8, line 44, after "business" insert "or organisation
§ The noble Lord said: My Lords, having got that Second Reading debate out of the way, I hope that we can move on a little faster. I shall do my best to be brief on this amendment, the purpose of which is to allow schools, charities, not-for-profit organisations and the like to make representations in their own right. They are currently able to do so for both liquor licences and public entertainment licences. Removing that right, as the Bill does, cuts out a class of potentially interested parties. It is not practical to suggest, as Ministers have done, that someone such as the employee, the parent or the pupil would make representations on behalf of a school; and similarly for other organisations. There are going to be strict timetables for making representations. Are Ministers seriously suggesting that a hospital, for example, which is concerned about a licence application across the street, should run down the addresses of its employees in the hope that it will be able to find one who lives in the vicinity of the premises and ask that person to make representations on behalf of the whole hospital?
§ Continuing on the theme of hospitals, at present the Bill would allow a BUPA hospital to make direct representations because it is a business, whereas a National Health Service hospital would have to ask one of its staff members to make representations on its behalf. I can see no logic in that.
§ There is a further and crucially important reason why organisations should be classed as interested parties. Residents' or tenants' associations frequently act on behalf of their members where individuals are reluctant to come forward because they find it difficult or are unable to follow the procedures, or because they feel intimidated. There have been instances where licence applicants called personally on people in the vicinity and put them in a state of fear even if no actual threat was made. Some applicants are rich and powerful companies. So the private citizen may not want to antagonise them without going into detail about how the company or big group might get nasty if they felt that the resident was opposing them.
§ In Committee, the noble Baroness, Lady Blackstone, said that a school could object through a governor, parent, pupil or teacher living in the vicinity. Such a person could make representations, but they would do so as an individual and not in their capacity as representative of governors, parents, pupils or teachers. Their collective voice would never be heard because the governor or parent would appear by authority of the named persons living in the vicinity who would be the interested parties for the purposes of Clause 14.
§ The rights of residents' associations would also be extinguished. An officer of the residents' association cannot appear in that capacity but merely as an individual nominated for the purpose of a hearing by people living in the vicinity. At one point in Committee, the noble Baroness, Lady Blackstone, said that a residents' association could be an interested party but immediately contradicted herself when she added—at col. 32 of the Official Report of 1256 13th January—that they could act only on behalf of those who had requested them to do so in objecting to a particular licence.
§ As I understand it, if the chair of the residents' association, local conservation society, amenity group or "generic local committee"—let us call it the GLC—does not live in the vicinity of the premises, he or she would have to produce a written authorisation from one or more people who do qualify as interested parties. The status of the chair or other officer in the GLC would be no more than that of representative of the interested parties. I should be grateful if the noble Baroness would confirm what I have just said about the necessity for the person purporting to represent persons living in the vicinity to produce a written authorisation. As I see it, if they did not do that, the applicant could object and say that the person was not entitled to appear before the tribunal purely in his capacity as an officer of the GLC.
§ The whole point of having such an organisation is that the individual does not have to appear before what may seem to him a strange and incomprehensible tribunal, or even to have his name mentioned in that setting. It is absolutely certain that some residents who are currently happy to brief the officers of their local GLC will go silent if they have to be identified. Therefore, many valid representations will go by the board. The House has already decided that MEPs, MPs and local councillors can appear in their own right. They may be asked to do so far more regularly if people cannot look to their local amenity association. I beg to move.
§ Lord Brooke of Sutton Mandeville
My Lords, I spoke to similar amendments both in Committee and on Report and I am delighted to support the noble Lord, Lord Avebury. The Minister set out on previous occasions the Government's rational explanation of why the Bill is as it is. I simply want, in illustration and in support of the noble Lord, to give some idea of what it is like at the coal face in terms of dealing with the Bill as it is currently written.
The Minister explained, most recently on Report, how it would be possible for a person within an organisation that was not a business who was entitled to make representations to do so on behalf of that organisation. I put the matter in a local context within the West End. It may constitute a particular problem in the West End. Some 40,000 people work in the West End. A large number of organisations in the West End are not necessarily commercial or profit-making and are directly affected by the legislation. The West End is the most highly licensed area in the country. As we said in Committee, it constitutes a much larger area than similar areas in other western European cities which have been studied by the University of Westminster.
Under the present legislation an individual within the local community in Westminster picks up 150 licence applications simultaneously in a sheaf from the magistrates' court. It is reasonable to assume that the same level of licence application will be made in future as has been the case in the past, although I agree that 1257 the absence of annuality will cause that to diminish. Those 150 applications then have to be sorted and clarified by the individual who fetched them, perhaps working in collaboration with one or two other people.
When the Government announce through guidance precisely what their policy will be on the advertising of licence applications—Westminster City Council has over a long period developed an extremely good system which is highly visible to local residents and local organisations—the problem may diminish. But at the moment we do not know precisely what the Government will announce in guidance in that regard. Anyone who reads the local press in any inner city will be aware that anyone can satisfy the statute totally to the letter but in a manner which does not reach the people who are directly affected by it. The fact that at the moment the documentation from the magistrates' court is a critical factor in the absence of guidance on the advertisements means that people have limited time in which to object.
The reliance on a person to whom I shall refer as a bystander—because although he is obviously an interested party within the particular organisation, he is a bystander to the process—will further dramatically complicate the process of identifying someone who is prepared to become the person who makes representations on behalf of the organisation. Having identified that person, there will also be considerable difficulty in persuading him to make representations.
I do not want to exaggerate these matters but in Committee I said that when there were 164 sex establishments in Soho they were collectively known, and still are, as the Vice, with a capital v. That nomenclature was not bestowed upon them by accident. There is a habit of communicating to objectors the message, "We know where you live". Given the smallness of Soho as a community, that is a real and genuine threat. As I say, there is not only a problem as regards identifying a relevant person but an even bigger problem as regards finding someone who is willing to make representations.
In the previous debate I alluded to the fact that the Select Committee in another place, which is taking evidence on the night economy, is talking to residents in the West End in order to get from their lips a clear picture of the situation. That involves looking out of people's windows to see what it is that they are complaining about so that it has the ipsissima verba of the people involved.
Despite the Minister saying that there is a perfectly satisfactory remedy for problems created by the Bill, I cannot help feeling that people's human rights are being diminished by the complication which is now being introduced. Those rights will be reduced as a result of the Bill and it is less likely that relevant representations will he made. We all know that many people up and down the country say, "If only I had known that that was going to happen, I would have made objections" but find that by the time they do so it is too late.
§ 4.45 p.m.
§ The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone)
My Lords. I believe that there is unnecessary concern about this issue. The Bill defines an interested party as a local resident or a body representing residents or local business or a body representing such businesses. An interested party may make representations on applications for premises licences or club premises certificates or may apply for a review of the licence or certificate after it has been granted.
We exercised great care in selecting the terms in the Bill as originally drafted to ensure that there was a balance between deregulatory gains on the one hand and proper and fair representation on the of her. We chose the terms,a person living in the vicinity",and,a person involved in a business",and their representative bodies as they encompass those who would be affected by the use of particular premises as a result of their living or working in the vicinity.
At this point, I should restate my answer to a question raised by the noble Lord, Lord Brooke of Sutton Mandeville, during debate on this matter at Report stage. Employees of a particular business in the vicinity of particular licensed premises will be able to make representations through their employer, even if they do not live in the vicinity of the premises themselves. The point is to give all those with a legitimate interest a fair hearing while preventing those individuals or groups, some of whom may have ulterior motives, from making trivial or spurious representations which have absolutely nothing to do with the licensing objectives, and undermining the smooth operation of the system. The use of the word "business" rather than "organisation" places this balance as near to the ideal as it could be.
I hope that the House will let me illustrate this argument by way of a couple of examples which were mentioned by the noble Lord, Lord Avebury. The noble Lord referred to schools. Local residents, and bodies that represent them, will be able to make representations. This is likely to include parents, teachers and governors. So schools will have the ability, in one form or another, to get their views heard.
The noble Lord also mentioned hospitals. Hospitals constitute another category of organisation that he and other noble Lords have suggested should be added to the list of interested parties. Here the position under the Bill is even clearer. Most hospitals are operated as trusts which fall within the broad use of the term "business" in Clause 14 of the Bill. Such organisations will therefore be able to make representations on licensing matters. There will be no distinction, as contended by the noble Lord, Lord Brooke, on Report and just now by the noble Lord, Lord Avebury, between private and public healthcare providers. In addition, where appropriate, patients, doctors, nurses, hospital administrators and members of hospital 1259 boards themselves may make representations where they live in the vicinity of the premises which is the subject of an application.
I turn to charities. Interested parties already include a person involved in a business in the vicinity. We have not restricted the breadth of meaning of "business" for these purposes. A charity with an outlet in the particular vicinity, or having its offices in that vicinity, would come within the broad scope of the term. So there is no reason to extend the views of interested parties in respect of charities.
I turn to residents' associations. Representations from residents associations will clearly be allowable. Indeed, Clause 14(3)(b) refers specifically to a body representing persons who live in a vicinity as an interested party. Residents' associations are explicitly provided for in the Bill.
The noble Lord, Lord Avebury, said that I in some way contradicted myself earlier. I am not quite sure how I did that, but if I did I apologise. I hope that what I have said on the subject is now absolutely clear. He also asked about written authorisation. A person representing local residents must be authorised by the residents, but that does not necessarily require authorisation in writing. A residents' association has the right to make representations if, as a matter of fact, it represents residents in the vicinity of the premises concerned without any further authorisation. I hope that that adds clarity to the intentions behind the Bill.
Much was made of the human rights implications of the Bill during the debate on similar amendments on Report. The noble Lord, Lord Brooke, has raised the matter again. Our amendments on Report resolved any residual questions that the Joint Committee on Human Rights might have had. The Government are absolutely confident that the Bill is entirely compatible.
The amendments are unnecessary. The Bill allows for representations from those affected by decisions on individual premises. The noble Lord mentioned intimidation, so I add that residents can ask the police to make representations on their behalf if they are afraid to raise their heads above the parapet, so I do not think that there is a problem. The police are not restricted in terms of the issues that they may raise with the licensing committee.
The amendment adds nothing to the Bill that helps to expand the definition of interested party. At the same time, it could increase the bureaucracy involved and distort the focus of the regime away from the licensing objectives, as well as providing an opportunity to some people—perhaps very few, admittedly—who might seek to frustrate an application for commercial, political or other reasons. On that basis, and in the light of my further explanation, I hope that the amendment can be withdrawn.
§ Lord Brooke of Sutton Mandeville
My Lords, in what way would the addition of the words "or 1260 organisation" further complicate the bureaucracy involved if, in the Minister's view, the word "business" already embraces them?
§ Baroness Blackstone
My Lords, it could allow all kinds of individuals or bodies to object to a licensing application for some reason or another, and they might not have justified grounds for doing so by being local residents or local businesses in the vicinity of the particular premises involved. Therefore, local authorities would have to process and deal with far more illegitimate objections than they might have to deal with otherwise.
§ Lord Avebury
My Lords, I am extremely grateful to the noble Lord, Lord Brooke of Sutton Mandeville, for his support for the amendment. He probably has more experience of such matters than anyone else in the House, from the high concentration of licensed premises in the West End and from his knowledge of the processes through which residents have to go at the moment in making objections.
To some extent, I am reassured by what the noble Baroness has said. She has gone further than ever in defining the scope of organisations that can make representations. I am grateful to her for what she said about schools, especially that organisations of parents, governors or teachers could make representations irrespective of whether they could show that particular individuals who belong to those organisations live within the vicinity of the premises.
I am grateful for what the Minister put on the record about the fact that, in the relevant regard, there is no difference between a hospital trust and the private hospital, as we had thought. She said that patients, doctors and nurses could make representations—admittedly, she then added that they had to live in the vicinity—as they obviously could in their own right. I was hoping that she might have said that organisations representing patients, doctors and nurses, in a similar way to the teachers, governors or parents of a school, could make representations if the hospital was located within the vicinity of the premises.
Let us take St Thomas' Hospital as an example. If a licence application was made in its name, I would expect that organisations representing the professional people and the workers in that hospital would be entitled to make representations in their own right, and not by reason of the fact that they could produce particular individuals among their membership who lived in the vicinity of the premises. Perhaps that point needs to be explored in another place.
The Minister said that representations would be allowable from residents' associations irrespective, again, of whether the associations had the authority of persons living in the vicinity. That is an enormous help to us, because of the point that I made about the reluctance of individuals to come forward, even if it is simply a matter of having their names cited at the hearing. At the moment they like to have an association to represent them because of the anonymity it gives them. In future, with the new procedure, it will be equally necessary for 1261 organizations such as the Soho Association to be able to go to licensing hearings and make their representations without having to say that, in doing so, they are representing Mr x or Mrs y who lives in Dean Street or Meard Street.
I am happy that we have gone a long way towards meeting the anxieties expressed at an earlier stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]
§ Clause 19 [Determination of application for premises licence]:
Lord Avebury moved Amendment No. 4:
Page 12, line 7, leave out from "authority" to "to" in line 8 and insert ", providing the application is consistent with its licensing policy statement, must grant the licence subject
§ The noble Lord said: My Lords, we believe that there are bound to be instances where an application which is not in conformity with the licensing policy statement may get to the licensing authority without any relevant representations having been made, partly as a result of the limitations that we fear might be imposed on the rights of local residents' associations to object. I realise that we have gone over that point, but we still think that there may be instances where an application gets through all the hoops without being noticed, and reaches the licensing committee without an objection.
§ I have a list of the applications tabled last Tuesday for consideration by the licensing court in Westminster today. I think that the noble Lord, Lord Brooke, referred to that list on the previous amendment. It contains 198 applications on 98 pages. How an individual living in one of the stress areas could be seriously expected to go through that vast dossier, identify an application that may seriously affect his residential amenities and lodge a coherent objection in less than a week is not clear. The noble Lord has already described such difficulties. One has to go through individual applications and analyse them to see of what they consist, which is not always very clear.
§ The amendment seeks to ensure that when an application gets past the eyes of interested parties without any of them having made relevant representations, because they failed to notice that some feature of the application was not in conformity with the licensing policy statement, the licensing authority would still be entitled to refuse the application. Probably that would happen only very rarely, but it would be extremely rash for Ministers to say that it could never occur.
§ Another point is at issue. The guidance contains an injunction to the licensing authority not to consider repetitious complaints in paragraph 6.62, but has nothing to say about repetitious applications. I shall give an example. A public house in Bath, The Huntsman, has a public entertainments licence to operate until 2 a.m. six nights a week. It is close to the Abbey Hotel and residential properties. For many years, it has been a source of noise nuisance. There have been several unsuccessful attempts to prevent the renewal of the licence.1262
§ Last year, the hotel and the residents got a good joint case prepared, with proof that customers from The Huntsman caused the disturbances. The council's licensing committee decided to reduce its hours, and since then the area has become peaceful. The licensee now says that he will apply repeatedly until he finally wins the case. That puts the objectors at some disadvantage because they have to keep assembling witnesses and evidence as often as the licensee fancies, until he gets his "result". There may come a point when they do not get their act together—for example, if the prime mover among the objectors goes on holiday at a crucial time or the objectors have not got the resources to continue. The objectors will have to be extremely vigilant. There is nothing in the guidance that states that a licensing authority has the power to reject an application for not being in conformity with the licensing policy statement. The amendment will give them that power.
§ The noble Lord, Lord Brooke, touched on the point that the ministerial guidance does not as yet make clear the need to provide a readable notice on the premises as well as two advertisements placed in local newspapers and the power of licensing authorities to circulate by post details of the application should they so choose. Also, all advertisements, notices and letters should include a clear summary of what is proposed, including opening hours, to save people having to make representations to safeguard their position while they find out what the application is about. If the people affected by an application do not see the notice, or if they have no idea of the total effects it will have, they could easily miss the boat.
§ The noble Lord, Lord Davies of Oldham, referred a few moments ago in what resembled a Second Reading debate to the "wider community interest". The amendment would preserve the power of the licensing authority to look after that wider community interest. For all those reasons, we believe it important that the licensing authority should have the fall-back power proposed in the amendment. I beg to move.
§ 5 p.m.
§ Lord Brooke of Sutton Mandeville
My Lords, I shall do my best to be brief. I apologise for the fact that an amendment has been tabled at Third Reading concerning what might be described as the categorical essence of the problem that the Bill sets. The process in your Lordships' House has been a sort of pre-legislative scrutiny, if that is not an Irish paradox. It has been possible to read on the faces of Ministers their surprise at information provided by those on these Benches during our proceedings.
§ Lord Brooke of Sutton Mandeville
My Lords, I should never believe that the noble Lord was a bad poker player; I should say that he was precisely the opposite.
1263 I pay tribute to the Government Front Bench for the flexibility they have shown in responding to arguments. I am conscious that we are producing at a late stage in proceedings in your Lordships' House an amendment that gets at the Bill's categorical essence. The amendment is intended, not as a wrecking amendment, but as a response to the spirit of the Bill at this stage.
The noble Lord, Lord Davies, earlier prayed in aid my observations in terms of the need for the local community to be involved in the process through the local authority rather than through magistrates. The input of the local community occurs with regard to determining what the licensing policy of the local authority is. If the licensing policy is not allowed to influence the categorical statement in the Bill that the licence must be granted, by definition the local authority has a role, but that role is more in the manner—I do not want this Shakespearean context to be misunderstood—of the first and second assassin or the first and second gravedigger rather than the part of Hamlet himself. It is fulfilling arrangements dispensed from on high and at the centre.
The amendment would provide for the local community and the local authority acting on its behalf the right to determine the application in line with whether it met the local licensing policy which had been set by the local licensing authority having regard to—we return to our earlier debates—the ministerial guidance. There is no doubt in my mind that local communities would be greatly reassured if the amendment were agreed to.
§ Lord McIntosh of Haringey
My Lords, this has been an instructive little debate. It enables me to contrast the present law, the law as it will be (in the Bill as drafted) and the effect of the amendment. As we know, the current law is that there must be hearings even when there is no dispute. Magistrates, local authorities, the police and responsible authorities generally must turn up to hearings even when there are no objections. That involves a substantial waste of time and money, which clearly increases the cost of licences. Incidentally, the fact that there must be so many hearings is confirmed by the comments of the noble Lord, Lord Avebury, on the number of matters listed by Westminster licensing justices. The huge number of applications shows how bureaucratic the current procedure is. The list to which he referred includes not just original applications for licences but also renewals, variations, extensions and many special orders. None of those would require to be on any list and none of them would require to be inspected or searched for in the way in which he suggested.
In Clause 19, we provide for the determination of applications that are made under Clause 18. Clause 18 states that applications must comply with regulations. That is not in the guidance; the noble Lord should not look for it there. The form, manner and method of advertising applications will be set out in regulations rather than in guidance. That will ensure that each application goes directly to the responsible authority, 1264 so that it does not have to search through other people's documents in order to find them. It will therefore be able to consider representations. The method of advertising to interested parties will also appear in the regulations.
The circumstances in which the amendment would be triggered are those cases in which there have been no relevant representations. In other words, the police, having been notified of the application, would be satisfied on crime and disorder grounds, the fire authority would be satisfied that no fire risk was involved, health and safety authorities would be satisfied that there were no health or safety risks and environmental health authorities would be satisfied that, for example, there was no noise nuisance. The noble Lord's example in Bath fits in with my remarks because environmental health authorities have a responsibility—residents do not have to look out for it—and will be expected to protest if there are applications that involve noise nuisance. Moreover, the planning authority would be satisfied that there was no conflict with planning policy. We have been through the position regarding residents, residents' associations and businesses and I need not do so again. All of those bodies would have an opportunity through well-advertised applications to make their views known. If the Bill remains as amended on Report and survives the Commons, the local authority itself, in terms of any of its responsibilities, would be able to make relevant representations. The amendment will be triggered only when none of those people or organisations has made an objection.
The amendment then says that the licensing authority can second-guess all the experts, professionals, local people and everyone else. Can that really be the intention? Can it be intended that we should trigger hearings of that kind? Quite apart from anything else, there is an appeal system to the magistrates' courts. Do we believe that the magistrates' courts will sustain the turning down of an application when the licensing authority objects to it, having received no relevant representations?
The Bill concerns the simplification of the procedures so that the community, public safety, the prevention of crime and disorder and the protection of children are promoted in the easiest possible way. If there is to be a hearing of the kind that the amendment suggests, who will be invited? Will the police be summoned, even though they have made no objection? What will the content of the hearing be and what will be the cost? Clearly there cannot be a cost to the licensing authority because there is full-cost recovery. Therefore, the cost will go directly to the applicants.
A procedure is in place here. There is a system of responsible authorities and interested parties which, as I hope I made clear, covers all the points that need to be, and can be, made in terms of public protection. The amendment would simply add to the bureaucracy and to the possibility of dragging out the unnecessary procedures. Above all, it would add to the cost.
§ Lord Avebury
My Lords, the noble Lord, Lord McIntosh, is seldom wrong, but in this case he is wrong 1265 to say that the amendment would add to the bureaucracy and to the costs. In my introductory remarks, I said that the events which would trigger the process dealt with in the amendment are extremely rare. The noble Lord has, in his comments, simply confirmed that that is so.
Because these "sieves" are in place and because initially there will be a far smaller number of applications, that will make it easier for the objectors to look through them and discover those to which they want to lodge objections. The number that would trigger a hearing would therefore be relatively small. However, it is still a fact that the objectors will have only a week in which to do so. The fact that the objectors will have only, say, 50 applications instead of 198 to look through will make the job easier for them, but that does not mean that they will never make any mistakes. The same applies to all the authorities mentioned by the noble Lord.
I agree that it is extraordinarily unlikely that the police and fire, health and safety, environmental health and planning authorities will miss something important in an application so that it reaches the licensing authority without their having raised any objections, when, if it had been drawn to their attention or if they had noticed the implications of an application, they would certainly have done so.
However, I am trying to take care of the extremely rare instances where that could happen. The noble Lord says that such cases are impossible because of all the safeguards, but I believe that that contradicts human nature. Things can go wrong in every sphere of human activity. Even in this House we can make mistakes. We can spend as much time as we like on a Bill—on this Bill, for example—but provisions will still reach the statute book that will have to be the subject of amending legislation at some point in the future. Even though 650 people in this House and 650 in another place spend perhaps 100 or 200 hours examining proposals, the occasional thing will still get through the net and on to the statute book.
§ Lord McIntosh of Haringey
My Lords, I am sorry to intervene. The noble Lord said twice that there is only a week in which to make objections. The timescale has not been decided but it is much more likely to he 28 days.
§ Lord Avebury
My Lords, again, I am extremely relieved to hear that. In the case of the large application list which I have just mentioned, the timescale was a week—from last Tuesday to this Tuesday. The hearing was today. The bundle of 198 applications extending over 98 pages, which I showed your Lordships a few minutes ago, was given to potential objectors last Tuesday and, therefore, the timescale was one week.
However, I am relieved to hear what the noble Lord says. It simply makes the eventuality for which the amendment seeks to cater even less likely. Such instances will be extremely rare, and I have never denied that. But I believe that there will come a day when such an application comes before a licensing 1266 authority and people will say to themselves, "What a pity that the House of Lords did not take the opportunity to put these amendments into the Bill when they had the chance to do so at Third Reading". However, I can see that I shall neither convince the noble Lord, Lord McIntosh, nor get enough people to come into the Lobby with me, as I should like. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 55 [Fees]:
§ 5.15 p.m.
Lord Brooke of Sutton Mandeville moved Amendment No. 5:
Page 33, line 7, leave out paragraph (b) and insert—
(b) prescribe guidance for licensing authorities when setting the amount of the fee and what may be charged for under the fee
§ The noble Lord said My Lords, in moving this amendment, I shall speak also to Amendment No. 7, which carries the same words with the exception of the opening one. The first amendment relates to premises licences and the second to those of clubs.
The purpose of the amendments is clear: the setting of the fee level should be via guidance only on what costs to include, and local authorities should be allowed to determine their own costs based on the guidance and not have the amount fixed separately. The current statement in Clause 55 refers to regulations that may,
prescribe the amount of the fee".
§ The fact that it will be done centrally is familiar to all those in your Lordships' House who have taken part in these debates.
§ The Department for Culture, Media and Sport has said on numerous occasions that it will ensure that the centrally-set application fee and annual fee will cover all associated costs, and that is of course a welcome assurance. However, it is hard to envisage how the DCMS will come up with a one-size-fits-all fee that does not involve local authorities making either a loss or a profit. I believe that that is self-evident.
§ The amendment would still impose statutory regulations on fee setting. It would tightly control what may be charged for under the fee and how the fee should be calculated. Within those guidelines, local authorities would be able to set their own fee in consultation with licensees, residents and businesses. The outcome would be a "win, win, win" scenario for licensees, residents and local authorities.
§ On Report, the noble Baroness, Lady Thornton, referred to the potential costs that Camden would have and I spoke about the potential costs in Westminster. I do not propose to go over that ground again as those two case histories were recounted and recorded at that stage of the Bill. However, as this is a central and national issue and one in which the Local Government Association has an interest, I want to make some remarks about the principle.1267
§ If councils are not properly funded by fee income and restrict non-essential activity due to cost, it will not be effective to rely upon the right of residents to call for a review of a licence where and when problems arise. If a council is already making a loss on its licensing service, there will be a commercial pressure to resist setting up review hearings, which will be a relatively expensive process for the council.
§ The regulatory impact assessment currently estimates the industry costs and costs to local authorities for administering the new regime levels based on CIPFA information regarding current levels of court action. It has estimated that 1.5 per cent of alcohol licences and 0.5 per cent of public entertainment licences result in court action or warnings. Those figures have been used to estimate the costs under the new regime. But these low percentages are the consequence of rigorous enforcement procedures, proactive enforcement and checking, and locally agreed conditions and requirements under the established regime, backed up by local licensing policies and current powers. They are not indicative of the likely actual ratio of legal activity and costs under the new system. If those ratios are maintained it will simply be as a result of the financial constraints preventing local authorities enforcing to a standard that they currently deliver and wish to maintain.
§ Incidentally, I am reminded of the first debate in the previous Parliament on the Hunting Bill when Mr Michael Foster, the Member for Worcester, who brought forward the Bill quoted a MAFF pamphlet which said that farmers were now satisfied that lambs were not in danger, which produced a cheer from his side of the House. When I spoke in that debate I added that Mr Foster had omitted the second half of the sentence in the MAFF pamphlet which said that that is a consequence of strict pest control by hunts, which transformed the original statement that he had uttered.
§ Reliance on the statutory minimum requirements for monitoring and enforcement may well prove to be insufficient and wholly inappropriate for all but the most responsible of licensees and operators. Councils may have little choice in order for the regime to be cost neutral.
§ I shall not go into the legal issues, but my impression from the regulatory impact assessment is that they believe that the saving to the industry will be around £1.7 billion over 10 years. At least £400 million of that is said to be legal fees. My understanding from lawyers who have looked at the legislation is that there is not likely to be a saving on legal fees because of the complications that the Bill produces. Clearly, a number of such legal actions will be against licensing authorities which will add to the licensing authorities' costs.
§ The Licensing Act 1964—at this late stage I should declare an interest in that my late noble kinsman was Home Secretary at the time that that legislation was brought in—has many weaknesses, bureaucracy and faults that the legal profession has so ably been able to 1268 navigate, to resolve or to exploit to their clients' benefit. I agree with the Government Front Bench that reform was needed. I shall not go into the detail of that at this stage, but I dare say that it will be raised in another place.
§ I shall not refer to initial start up costs because we tabled a probing amendment in relation to that on Report. However, I want to mention the redistribution of savings and resources, which perhaps will be a harbinger for another place as well.
§ The police are being given significant new responsibilities as part of the Bill, but seemingly no new ring-fenced resources. There will be significant savings to the Lord Chancellor's Department in winding up the justices' licensing committees. There seems to be no reference to the balancing figures in the regulatory impact assessment. Has any estimate been made of the value of those savings? That is really a matter for another place, so I do not seek an answer to that tonight. We can assume that local authorities are not to receive additional support, so are there plans for the Home Office to benefit in a reciprocal way from those savings in order to ensure that the police can meet their new responsibilities? I beg to move.
§ Baroness Blackstone
My Lords, we have had useful debates on the central setting of fees at all stages of the Bill. At each one I have emphasised that fees will be set at a level that will allow all licensing authorities to recover the costs of administration, enforcement and inspection, as the noble Lord, Lord Brooke, has conceded. There will be no potential for under-funding or for a deficit to be picked up by council tax payers. The amendments seek to allow licensing authorities to set fee levels, but the drafting is flawed in achieving that aim. The amendments fail to give licensing authorities the power to set fees.
That aside, I understand the concerns of local authorities about this matter. They are perfectly understandable. It is right that any guardian of public funds should seek to protect its resources. That is why, to ensure that fees are set at levels to meet fully the costs of the new system, they will be decided following extensive consultation with local authorities. Relevant factors will be taken into account, such as those areas with significantly higher overheads and the size of premises, because the costs associated with licensing relating to a large night-club could differ from those of a small pub or bar.
The intention behind that policy is to ensure that the level of fees across the country is proportionate and consistent with the enforcement aim of public protection. As one may expect, currently we have a wide range of enforcement effort which is reflected in the wide variation of fees charged. The Government believe that it is possible to cut out the extremes and to promote the right level of enforcement. In some cases that may result in a licensing authority reviewing the effort that it puts into enforcement, inspection and administration and the efficiency with which it carries out those tasks. That revision may just as easily be upwards as downwards.
1269 The fact is that fees for public entertainment licensing—we should not forget that that is the only licensing fee that local authorities set themselves— vary significantly across the country, as does the way in which fees are calculated.
As I made clear on Report, there are precedents for the central setting of fees. The 155,000 holders of alcohol licences pay fees to the licensing justices that are set centrally by the Lord Chancellor's Department. The noble Lord, Lord Brooke, asked about the savings from removing that responsibility from the licensing justices. Currently the cost of licensing justices is fully recovered from the licensing fee. Therefore, it follows that there are no savings to transfer when licensing justices cease those activities.
The fees for cinema licences are set centrally by statutory instrument. The businesses paying local authority set fees for public entertainment, theatre and late night refreshment are very much the minority under the existing regimes, of which I am sure the noble Lord, Lord Brooke, is fully aware.
I must stress that while fees will be structured to ensure that licensing authorities recover their costs, it is imperative that the large variation in the fees and the way in which they are calculated are not replicated under the new system. Those inconsistencies lead to uncertainty and to confusion for businesses as well as for others who apply for public entertainment licences under the current regime. There is no rationale for them either.
Given my repeated assurances that fees will be set at a level that will allow all licensing authorities to recover the costs of administration, of inspection and of enforcement in the new regime and that they will be set in full consultation with the industry, with local authorities and with other interested parties, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Brooke of Sutton Mandeville
My Lords, I am most grateful to the noble Baroness. The words that I hear her utter are clearly intended to reassure me. I have a warm glow within me that perhaps means she is reassuring me. But the question that I postulated as to how centrally prescribed fees will prevent any local authority from making a profit or a loss, but meet its costs exactly, is quite difficult to envisage under the terms of what the Minister has so far been able to vouchsafe to us during the proceedings in your Lordships' House. At least we have had a good run on the subject of fees. I am certain that another place will return to the issue because at the moment I do not understand how the Government will work the magic that they constantly describe whenever they respond to amendments on this subject. As that excitement is for another place, and not for tonight, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1270
§ 5.30 p.m.
Lord Brooke of Sutton Mandeville moved moved Amendment No. 6:
Page 33, line 13, leave out subsection (4) and insert—
§ The noble Lord said: My Lords, I can speak more briefly on this amendment. In moving this amendment I shall speak also to Amendment No. 8 in Clause 90 as it seeks to achieve the same objective in the context of clubs as the first amendment seeks to achieve in the context of premises' licences.
I am grateful to the noble Baroness, Lady Blackstone, for her letter of today's date. It explained the Government's attitude to the amendments moved by the noble Baroness, Lady Thornton, on this subject on Report, on which I spoke. Clause 55(4) states:
Any fee which is owed to a licensing authority under subsection (2) may be recovered as a debt due to the authority".
Local authorities—I am conscious that this is a continuing matter of concern to the Local Government Association at large and is not simply a local central London problem—are extremely concerned at the huge cost and time implications of this aspect of the proposed legislation.
§ Currently, the law states that if one does not pay the public entertainment licensing fee before the expiry date of the licence, which is usually one year, then one's entertainment licence lapses until the operator pays the fee. The Government's proposal is that the local authority will in effect be able only to "chase up" the fee, which will now he for all licensable activities not just entertainment licences. That will cause significant problems, which is why new subsections (4), (5) and (6) have been tabled.
§ Under the new legislation—I am conscious that I am going over the same ground as on Report—the majority of premises licenses will run continually unless surrendered or revoked. I must repeat: what possible incentives are there for operators to pay their ongoing annual fee? Local authorities will be unable to take any redress or punitive action.
§ The proposal that local authorities will have the time and resources to chase up the fee is of concern to local authorities across England and Wales. The potential impact of reduced cash flow, which is needed to keep the licensing service running, should not be underestimated. Local authority budgets cannot sustain year-on-year under-achievement of income because licensees have no incentive to pay. The result will be an under-funded, inefficient service which is of no benefit to anyone, particularly those responsible licensees who do pay up on time.1271
§ In her letter the Minister sought to explain why I am wrong. She said that most of those involved are businesses and that there is provision for normal commercial logic and discipline to be followed. The noble Baroness, Lady Thornton, in correspondence after Report indicated the acute problems which local authorities already have with street traders. I realise that it was the noble Baroness, Lady Thornton, who wrote to the Minister and not me, but in her reply to me there is no reference to the street trader problem. It is the street trader problem that prompts the Local Government Association to be so concerned about this aspect of the Bill. I beg to move.
§ Baroness Blackstone
My Lords, these amendments were brought forward both in Committee and on Report. The only difference is that instead of my noble friend Lady Thornton championing this issue, the noble Lord, Lord Brooke, has taken up the baton and is running for home on the back straight.
The amendments seek to make the penalty for late or non-payment of the annual fee the lapse of the premises licence or club premises certificate. The Government believe that that is disproportionate. It raises the prospect of entirely innocent people being put out of work because of what might be an administrative oversight by their boss. Debt recovery is part of a local authority's everyday business. We should also not forget that the licensing fee will be set at a level, as I said when dealing with the previous group of amendments, that will allow the licensing authority to recover its costs, including any that might be associated with debt recovery. However, we have no evidence to suggest that non-payment of annual fees is likely to be widespread in the future.
My noble friend Lady Thornton said on Report that there would be no incentive for licensees to pay the annual fee. I am afraid that that argument simply does not wash. Local authorities make charges of many different kinds on both individuals and organisations. I am not aware of any local council cancelling the rubbish collection service for individual council tax defaulters or refusing to educate their children. The unpaid council tax may still be recovered by the authority's debt recovery operation.
Finally, I should clarify a further point raised on Report; namely, that under the current regime a public entertainment licence lapses if the fee is not paid. That is not the case. Public entertainment licences lapse, as the noble Lord, Lord Brooke, made absolutely clear, after one year whether or not the fee is paid. The notion that the licence lapses if the fee is not paid is, I am afraid, misconceived.
I therefore ask the noble Lord to withdraw his amendment unless we want to damage the livelihoods of people through no fault of their own.
§ Lord Brooke of Sutton Mandeville
My Lords, I am grateful, as ever, to the Minister for the courtesy of her reply. I like the concept of the noble Baroness, Lady Thornton, handing over a baton to me. It is implicit in 1272 the noble Baroness's image that neither of us drop it. I give back an image to the Minister if I am right and she is wrong. Debt enforcement by local authorities is frequently done by bailiffs, as all Members of another place know, because they are the ones on whom the complaints are visited, from the people who are called on to recover council tax which they have already paid, or whatever. Given the description of the pattern of behaviour by some bailiffs, I like the idea of bailiffs and licensees clashing in the middle of the West End.
However, if that becomes as normal as the Minister suggests, I can foresee it. I am certain that not only I, but also local authorities in central London and the Local Government Association will read carefully what the Minister has now said twice. The noble Lord, Lord McIntosh, knows how important it would be to have the opportunity to say it three times. For the time being, in the certainty that the issue will be returned to in another place, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 90 [Fees]:
§ [Amendments Nos. 7 and 8 not moved.]
§ Clause 105 [Counter notice where permitted limits exceeded]
Baroness Buscombe moved Amendment No. 9:
Page 59, line 40, at end insert—
( ) are not in respect of a village hall, church hall, parish hall, community centre or similar community building.
The noble Baroness said: My Lords, Amendment No. 9 seeks to allow certain categories of premises to be exempt from restrictions on the number of temporary events it holds during one year. On Report I tabled a similar amendment. I wanted to see village halls exempt from being restricted to five temporary events a year. The thrust of that previous amendment was to make sure that the thriving community life centred around the village hall was not constrained or, perhaps, strangled by limiting temporary events. I commented that village halls,
will have neither the time nor, necessarily, the expertise to apply for a premises licence. Village hall funds are already modest. The cost of preparing the application for a premises licence and the fees would consume a significant part of their income. As the Bill is currently drafted, village halls will have to stick to five events a year and that would be an absolute disaster".—[Official Report, 27/2/03; co1.493.]
The noble Lord, Lord McIntosh of Haringey, responded with a particular point: how can we distinguish between village halls and other community centres? On reflection, the noble Lord has a valid point. Today, therefore, I speak to an amendment which seeks to allow community halls, parish halls and such like the freedom to hold as many temporary events as they wish. The noble Lord claimed that that would in effect,
allow widespread circumvention of the licensing laws".—[Official Report, 27/2/03; col. 494.]
§ I firmly believe that is not the case. If community halls want to hold regular events involving entertainment and the sale of alcohol they will not want to have to apply for an application every single time.1273
§ The Minister has already promised—and we are extremely grateful—that premises falling into this category may be granted a "nil fee" requirement. That is a step in the right direction. But if they are to hold regular entertainment they will have to take the time to fill out an application for a premises licence since their requirement to pay a fee may be waived.
§ The Government make much of the "flexibility" in the new system. Why not allow village halls, which may hold a variety of events on behalf of different local groups, from time to time to have no restrictions on the number of events they may hold. They may not know at the beginning of the year how many events they will hold, and, therefore, will not want to apply for a full premises licence. If later they receive requests to use the premises—for example, eight in a year—they can use temporary event notices instead of obtaining a lull licence. That will allow them to respond to ad hoc requests as and when they crop up.
§ This amendment is not about circumventing the system. The police will still have the power to object. It is unlikely that the amendment will lead to undue public nuisance or distress to local people. It will encourage and promote community events and community life. I beg to move.
§ Lord Redesdale
My Lords, I support the amendment and its objectives. I have one question, which I hope the Minister can answer. It has been raised with me in writing at this late stage. If a small village hall knows that it will hold a number of events, which might be regular, must it apply for each individual temporary event, or, under the regulations as set out, could it make a block application? It would save the village hall much time and expense if it could make one application with one fee covering all five events. It would also save the council the expense of separate paperwork for each application, which would eat into much of the money provided by the fee. Both sides would win in that situation. I hope that the Minister can help me.
§ Lord Cobbold
My Lords, I support the amendment. It is definitely in the interests of the wider community and seems to be in the spirit of deregulation and reduction of bureaucracy. I, therefore, commend the amendment to the House.
§ Lord Skelmersdale
My Lords, in this House and in another place, Members have constantly drawn attention to the plight of villages and the death of social life there through the disappearance of post offices, shops and even pubs. In my local village there has been a reduction from two pubs to one. I was delighted when the Government accepted that village halls, community halls, church halls and so on would be unlikely to have to pay a temporary licence fee. I support my noble friend on the Front Bench for that very reason. We should do anything possible to stop he village dying. This is an example of something that we can do.
§ Lord McIntosh of Haringey
My Lords, I was pleased that the noble Baroness, Lady Buscombe, took 1274 account of some of the problems that I had with her previous amendment, which referred only to village halls. I sympathise with the noble Lord, Lord Skelmersdale, and others who say that village halls are an important part of village life and everything should be done to preserve them. But, in practice, it would be impossible to draw a distinction between village halls and church halls, parish halls, community centres or community buildings; otherwise we would be discriminating in favour of villages and against towns and cities. The noble Baroness, Lady Buscombe, properly reflected that. She reflected, not only the cosy, delightful image of village halls, but the rather more gruesome description that I had to give of' one community centre in my former constituency. To that extent, one defect of the amendment has been removed.
But the fundamental objection to the amendment is now even stronger than before. The amendment would permit an unlimited number of temporary events in any such hall, including the sale of alcohol, on the basis of the temporary event notice procedure. That procedure requires that a notice is served at least 10 days before organisers intend to hold the event. In response to the noble Lord, Lord Redesdale, you can serve up to the full five notices at once, provided that the earliest event is still 10 days away. You could still apply for later dates at the same time if that were a serious problem. But the point is that, to reduce bureaucracy for relatively simple, rare occasions, the temporary event notice procedure has been restricted to a notice. The only possible objection can be by the police.
Where is the protection if you can have an unlimited number of temporary events in a village hall or community centre? As regards objections, the obvious exception besides the police would be the fire authority. If a hall is to be used frequently and regularly for events, the fire authority might demand something more than it would for premises used occasionally. Much more importantly, where is the protection for residents and children? Residents who tolerate the use of premises up to five times a year will certainly not be tolerant if the premises are to be available for many occasions a year.
The noble Baroness, Lady Buscombe, suggested that if an event were to happen often, the organisers would apply for a premises licence. But let us suppose that, because of problems, they did not think that they would get a licence. They could get a temporary event notice, and only the police could express concern on their limited grounds. If it were possible to make an unlimited number of applications for temporary events in such halls, it would be a way around the licensing system. It would be very much against the interests of local residents, and I am sure they would be the first to scream in complaint if such events were to happen frequently, even if not regularly.
We have the balance right. I am glad that it has been recognised that there should not be fees for village halls or community centres. But surely it cannot be 1275 right to have no protection for residents, children and everyone else who needs to be protected by the licensing regime.
§ Baroness Buscombe
My Lords, I thank the Minister for his response. I shall not keep your Lordships' House on this point. We have tried hard to persuade the Government that there is a special circumstance with regard to our local communities, particularly given that all those involved in the kind of events we envisage are volunteers battling against the demise of community life as we all know and love it. I hope that honourable Members in another place will take up the point and press it hard. For now, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 179 [Guidance]:
Lord Brooke of Sutton Mandeville moved Amendment No. 10:
Page 99. line 1, after "issue" insert "or revise
§ The noble Lord said: My Lords, as will be apparent to the Minister, this is a probing amendment arising out of the amendment that the Government moved on Report. It is probably self-indulgent to table a probing amendment at this stage. If the Minister would be kind enough to agree to reply to a letter in which I would carry out the probing that I would otherwise do in the House, preferably before Second Reading in the Commons, I would be happy to withdraw the amendment. So far, her record of meeting deadlines has been impeccable.
§ Baroness Blackstone
My Lords, I would be extremely happy to respond to any letter that the noble Lord, Lord Brooke, wanted to write to me on the amendment. I shall do so as speedily as possible.
§ Lord Brooke of Sutton Mandeville
My Lords, it is correspondence to which I look forward already. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 1 [Provision of regulated entertainment]:
Baroness Blackstone moved Amendment No. 11:
Page 110, line 14. leave out sub-paragraph (7).
§ The noble Baroness said: My Lords, the Government agreed to consider the concern expressed on Report by the noble Lord, Lord Phillips of Sudbury, that there was scope for misinterpretation of the provisions of the Bill in respect of the provision of regulated entertainment at a private event held by a charity. The concern was that the Bill would catch all relevant charitable events, even if they were intended not to make a profit but only to cover costs and, in the event, made a loss.
One of the conditions that must be fulfilled for entertainment to fall within the scope of the Bill is that, where it is not provided to any extent for members of
the public or a section of the public or by a club for its members—that is, it is a part of a private event—it must be provided,
for consideration and with a view to profit".
As I said on Report, it is certainly not the intention of the Bill to define entertainment provided by a charity as provided,
for consideration and with a view to profit",
even where the charity concerned is trying only to cover its costs and not to make a surplus on the event.
The Government tabled the amendment to remove any scope for misinterpretation by removing paragraph 1(7) of Schedule 1. The amendment will make sure that the condition in respect of the entertainment or entertainment facilities being provided,
for consideration and with a view to profit
can properly be construed as not fulfilled, if the charity is simply covering its costs. I beg to move.
§ Lord Phillips of Sudbury
My Lords, I thank the noble Baroness for the amendment. It fits the bill well. As she said, the point of the amendment is to ensure that nobody could be under any misunderstanding with regard to, for example, the provision of tea and biscuits during the interval in some event that is never going to cover its costs but might make a couple of quid on the tea and biscuits. The amendment will make it clear that such micro-profit in the context of an event that is not intended to do more than cover its costs will not fall foul of this part of the schedule. I am grateful for the amendment.
§ Baroness Buscombe
My Lords, I also thank the Minister for the amendment. We have all felt strongly about the matter throughout the Bill's passage, so we are grateful that the Government have tabled the amendment.
§ On Question, amendment agreed to.
Baroness Blackstone moved Amendment No. 12:
Page 112, line 7, at end insert—
§ "Garden fetes, etc
§ (1) The provision of any entertainment or entertainment facilities at a garden fete, or at a function or event of a similar character, is not to be regarded as the provision of regulated entertainment for the purposes of this Act.
§ (2) But sub-paragraph (1) does not apply if the fete, function or event is promoted with a view to applying the whole or part of its proceeds for purposes of private gain.
§ (3) In sub-paragraph (2) "private gain", in relation to the proceeds of a fete, function or event, is to be construed in accordance with section 22 of the Lotteries and Amusements Act 1976 (c. 32)."
§ The noble Baroness said: My Lords, when we discussed the amendment moved by the noble Lord, Lord Phillips of Sudbury, on Report, I said that we would consider tabling a government amendment. We have tabled an amendment that will exempt garden fetes and functions or events of a similar character that 1277 are not held for private gain from the entertainment aspects of the new licensing regime. I am grateful to the noble Lord for raising the matter.
§ The amendment will come as a boon to the organisers of the thousands of garden fetes held throughout the country. I beg to move.
§ Lord Phillips of Sudbury
My Lords, I am again grateful to the noble Baroness. Church bells will ring from one end of England to the other, as they did at the news of the assassination of the Duke of Buckingham.
The amendment fits the bill perfectly. My amendment—Amendment No. 14—perishes in the shadow of Amendment No. 12.
§ Lord Skelmersdale
My Lords, as a horticulturalist, I am delighted at the Government's reaction to the amendment relating to garden fetes tabled by the noble Lord, Lord Phillips of Sudbury. However, I ask the Minister to tell us what the difference is between a garden fete making a profit and a village hall or community centre making a profit.
§ Baroness Buscombe
My Lords, I am grateful to my noble friend Lord Skelmersdale for the point that he just raised. It occurs to me that that image of the village hall is to be rejected. It is not just an image; it is real.
I am sure, however, that all noble Lords are grateful for the amendment and grateful to the noble Lord, Lord Phillips of Sudbury, for raising the matter. The amendment will exempt those who want to hold something as simple and community-based as a garden fête. It is a step in the right direction, and we are grateful to the Government for responding to the suggestion made by the noble Lord, Lord Phillips of Sudbury, and to the debates on the issue.
§ Lord Avebury
My Lords, I declare an interest as the husband of someone who runs a local fair in the summer to raise money to enrich and extend the amenities at Myatt's Fields in the London Borough of Lambeth.
The London Borough of Lambeth has greatly reduced the size of its parks department and depends extensively on contributions made by private individuals throughout the borough who raise money by various means to enhance the amenities in its parks. It will he a great reassurance to all those engaged in such enterprises—not just the one run by my wife—in Lambeth and other parts of the metropolis to know that they will be able to raise a few hundred pounds every year by holding a fete without incurring any disadvantage under the Bill and that all the money will go to the public purposes for which it is intended. I am grateful to my noble friend Lord Phillips of Sudbury for raising the matter and to the Minister for making the concession.
§ Baroness Blackstone
My Lords, I appreciate the thanks expressed by noble Lords for the amendment. As I said, we should thank the noble Lord, Lord Phillips of Sudbury, for raising the matter in the first place.
1278 To the noble Lord, Lord Skelmersdale, I say that, in the debate on the previous group of amendments, my noble friend Lord McIntosh of Haringey explained clearly that a huge range of events could take place in village halls, many of which should be licensed. to make sure that the local community is properly protected from events that might get out of hand. A garden fete is a rather different matter.
§ On Question, amendment agreed to.
Baroness Buscombe moved Amendment No. 13:
Page 112, line 25, at end insert—
§ "Small premises
§ (1) The provision of entertainment is not to be regarded as the provision of regulated entertainment for the purposes of this Act, where
- (a) the number of persons attending the entertainment at any one time does not exceed 250, and
- the entertainment terminates no later than 11.30 p.m. on the same day.
§ (2) The provision of entertainment facilities solely for the purposes of the entertainment in sub-paragraph (1) above is not to be regarded as the provision of regulated entertainment for the purposes of this Act."
§ The noble Baroness said: My Lords, in moving Amendment No. 13, I immediately thank the Minister for a letter that, notwithstanding the fact that it is dated 10th March, I received just before I came into your Lordships' House this evening. The letter makes particular reference to incidental live music. It says that the Minister has decided to accept the principle that all incidental live music should be exempt. We are grateful for that important concession. Enormous progress has been made in that regard, and we are grateful to the Minister for that.
§ That said, we still believe that Amendment No. 13 is worthwhile and sensible. It would complement the Government's intention regarding incidental music. The amendments that we have achieved thus far are, to some extent, limited. The problem related to unamplified music, where instruments would require some form of amplification to make any noise. Given the fact that the Government have decided to accept the principle that all incidental live music should be exempt, that problem is somewhat diminished. That said, we suggest that it is diminished only with regard to incidental music, and we need to know what we mean by "incidental".
§ Our amendment could lead to a renaissance of live music and other small-scale entertainments. It sits with the Department for Culture, Media and Sport's goal of increasing participation in and access to the performing arts and using the performing arts to tackle social exclusion. It would include events that are, for example, advertised and, therefore, not necessarily just incidental to whatever else is going on. There is a concern that "incidental" could mean background music—for example, a pianist in a hotel, a string quartet or, with the Government's concession, amplified music—but it must be in some form incidental.1279
§ Amendment No. 13 is self-explanatory. It seeks to allow the provision of entertainment in licensed premises where the premises do not exceed 250 people and where the entertainment terminates no later than 11.30 p.m. on the same day. I repeat that it is right to strike a sensible balance between the amenity of people in the neighbourhood of the licensed premises and the enjoyment of people inside the premises.
§ The Government have said that, as drafted, the Licensing Bill strikes the correct balance between the right to a good night out and the right to a quiet night's sleep. Our question is: does it? A quiet night's sleep is considered to apply generally between 11.30 p.m. and 7.30 a.m. The exemption for broadcast entertainment covers transmissions on big screens set up in any place, with unlimited amplification and any number of people attending up to 24 hours per day. Not only sport but all kinds of pre-recorded and live music could be available.
§ The Government have decided that existing health and safety and noise nuisance legislation is sufficient to regulate any risks arising from such broadcast entertainment. However, we believe that the law as it stands would extend to any form of entertainment, including entertainment that would he provided within the limits of our amendment. This small premises exemption requires entertainment to cease by 11.30 p.m. with no more than 250 people attending at any time.
§ Public safety is covered by separate legislation. Both employer and self-employed performers have statutory duties to make risk assessments of the impact of their activities on members of the public. The example given by the Government of cables being trailed through an audience could lead to criminal prosecution under health and safety legislation, irrespective of any licensing controls. The same applies to the blocking of fire exits.
§ We know that noise within premises can be controlled. The Environmental Protection Act allows local authorities to seize noisy equipment immediately or to serve anticipatory noise abatement notices. The police can close noisy pubs immediately for up to 24 hours. I could go on. The reality is that this is a sensible, balanced amendment that would complement the Government's important concession in relation to live music being exempt where incidental. I beg to move.
§ 6 p.m.
§ Lord Redesdale
My Lords, I support the amendment, which also stands in my name and that of my noble friend Lord Falkland. This is a proportional amendment. I say that with regard to the House of Lords Committee on Human Rights discussing proportionality. There has been discussion on these Benches as to whether 11.30 p.m. is appropriate. Some of my noble friends say that nine o'clock is the average time at which people go to bed. As someone with very young children, I was awake between one and three o'clock this morning. I would happily have dealt with live music at that time.
1280 However, this amendment is being tabled not for any reason other than that it fulfils some objectives that the Government have set out in a letter. I have not received the letter but I had a cursory glance at that sent to the noble Baroness, Lady Buscombe. I believe that a letter is now on my desk. This amendment will allow small-scale events in places such as a restaurant seating 80 people with music playing in the background.
If the amendment is not agreed to, music will not be considered "incidental" if a band advertises that it will be playing. The main attraction will be determined by whether people turn up to listen to the band or to eat. Live music on a small scale is not the great draw that people talk about. We must take a realistic and commonsense approach.
The Minister will now say—as I know his honourable friend in another place said—"What about Kyoto drummers?". I was tempted to table an amendment specifically banning Kyoto drummers playing anywhere in the United Kingdom, so that this issue would not be able to raise the hackles of Mr Howells. Amendment No. 13 is not intended purely and simply to pander to the mischief-making of the Musicians Union. We support the amendment because it will lead to the renaissance (Alive music and the ability to go out and listen to live music. We should all support that.
§ Lord Colwyn
My Lords, I, too, support the amendment. Minor changes have been made to the Bill in an attempt to encourage live music and to provide places for musicians to perform. I, too, am grateful for the concession that the Government have made. As the noble Lord, Lord Redesdale, said, it is important that the difference between incidental music and featured performances is clarified. I shall not remind the Minister again of the wealth of talent in this country and the need to encourage live music.
Although the Minister assured us that the proposed legislation will encourage the use of live music, it is not seen that way by musicians. I have with me letters from various Ministers dating back to the early 1980s—all of them agreeing that the "two-in-the-bar" rule must go and that it should be changed as soon as it is legislatively possible. The Government may consider that they have done this, but musicians are now referring to the "none-in-a-bar" rule. The theory of a reasonable entertainment licence with an alcohol licence seems fine, but musicians do not believe that it would work. There is no evidence that more control is needed. The licensee is governed by so many regulations that it should be up to him how many musicians he feels should be admitted. He or she would risk the main licence if there were problems with the entertainment licence.
1281 When the new Bill is enacted, 78,000 pubs and bars, 25,000 restaurants and 4,000 clubs will lose their automatic right to host one or two performers. No one knows how many will take up the option to have live music under the Bill. The right honourable Member, Kim Howells, has been quoted as saying:Maybe it won't work, but no one has come up with a better way of doing it".Perhaps he should take a look at the situation in Scotland, Ireland, Denmark, Germany and France. Even if 50 per cent of licensed premises opt to host live music, that will leave 50 per cent where organising a featured solo, acoustic gig would be a criminal offence.
If the entertainment licence is not applied for with the alcohol licence, an application for live music will become a "variation" of the premises licence. That entails starting the whole process over again—notification of an approval by the police, fire service, environmental health, local residents and the licensing committee of the local authority.
Despite the Government concession, I implore the Minister to have a further look at this issue. The All-Party Parliamentary Jazz Group, of which I have the honour to be a joint chairman with Michael Connarty, has been active for many years trying to enable licensees to make their own decisions on how many musicians are ideal in different premises. I am wearing the all-party group tie. I had hoped to be able to say that there is a phalanx of Members sitting behind the Minister with similar views to mine, but I do not see a single tie over there. I am hoping that we shall be supported in the Lobby and perhaps in another place. Perhaps the Minister will allow us to present one of these ties to him when this Bill has been through both Houses. He will be much appreciated.
In my discussion with musicians over many years, I have found most to be supporters of the Labour Party. The Musicians Union supports the Labour Party. This is an opportunity for the Minister to show support for his supporters.
§ Lord McIntosh of Haringey
My Lords, I am grateful for that attempted bribe, but I do not wear ties which mean anything.
I am very happy to hold a debate on the matters that have been raised by the noble Baroness, Lady Buscombe, the noble Lord, Lord Redesdale, and others. We could discuss the relationship between incidental music and music which is the main purpose of an entertainment; the difference between recorded and live music; and the difference between amplified and unamplified music. I am also pleased that the concession made by the Government has been received in good spirit. But I do not think that we could have that debate on this amendment. I am afraid that it is so wide-ranging and drastic that, were it to be introduced again either here or in another place, things would have to be said about it which are not at all helpful to live music, whether it be jazz or any other kind.
The amendment would exempt huge swathes of entertainment from all licensing. I repeat: huge swathes of entertainment; indeed probably nearly all 1282 forms of entertainment. It would exempt it from premises licensing, from club premises licensing, and from temporary events notices—with the result that no one would even know when anything was going to take place. The amendment would do so on the two criteria set out: that audiences would have to comprise fewer than 250 people and that the entertainment would cease by 11.30 at night.
The amendment refers to "small premises", but it does not concern only small premises. It would affect any size of premises, whether outdoor or indoor, provided that the audience was smaller than the 250-person limit. We must take account of the fact that it would apply to outdoor events as well as those held indoors. The exemption from entertainment licensing would mean that, unless alcohol licensing with appropriate conditions were attached, there would be no protection, in particular, for children from harm.
Entertainment licensing applies to cinemas. Under the amendment, if a cinema seats fewer than 250 people, no licensing will be required. There would he no way to prevent young children from going to watch 18-rated or X-rated films. It could not be done. There would be no way to exclude children from, for example, a stag night. Again, it could not be done because the exemption from all forms of licensing means that no conditions could be applied.
The noble Baroness, Lady Buscombe, rightly remarked that in previous debates I have said that licensing should be confined to licensing matters and that some matters of public safety arid concern can properly be left to non-licensing legislation. However, if all licensing considerations were to be taken away, as would be the case under the amendment, then no licensing controls would apply, no conditions could be set and it would lead to the year-round provision of entertainment. All that would be left, except in a very small number of cases, would be the 11.30 p.m. cut-off point.
This is the archetypal sledgehammer to crack a nut. By all means let us have a debate on proper amendments in another place on the issues that were raised most reasonably in our debates, but please do not let us do so on this amendment.
§ 6.15 p.m.
§ Baroness Buscombe
My Lords, I thank the Minister for that full response. I hear what he has had to say, but we believe that this is a fair arid reasonable amendment. We believe that we have set a sensible time constraint and an equally sensible constraint in terms of the size of premises.
Concerns were expressed in earlier debates that if we were to exempt, for example, all live performances, then we could be talking about rave situations and other circumstances that could lead to crime and disorder, and of course the Minister has referred to the need to protect children from harm. However, we believe that the amendment does not and would not envisage events that could cause such problems. Numerous elements of legislation are already in place, to which I have already referred, which would take 1283 care of any problems that might arise. Indeed, the legislation is already able to deal with matters surrounding broadcast entertainment, which is not caught by similar provisions in the Bill.
The Minister may say that this is a drastic amendment, but we call it sensible and one that we believe is important in order to show honourable Members in another place that the matter is of deep concern not only to the music industry and musicians, as well as to many others involved in the entertainment business, but also to those of us who enjoy being on the receiving end of entertainment. We feel that entertainment should not be constrained in the way sought in the Bill.
Notwithstanding the fact that we are grateful to the Government for deciding to accept the principle that all incidental live music should be exempt, we do not believe that that would take it far enough. I am grateful for the Minister's words, but perhaps I may say that, as regards cinemas, surely the Government exemption for big screen broadcasts could easily equate to that. Therefore, while it is a good argument in some senses, it is not one that we would accept.
§ This is an important amendment.
§ Lord McIntosh of Haringey
My Lords, I do not think that it is possible to show 18-rated films in a pub, for example, to audiences including under 18 year-olds. In small cinemas—there are many of them, especially in villages—we are saying that the amendment would allow children to watch films that they should not be watching.
Were I to ask for a press release to be issued on the amendment, if it were to be pursued and carried, I would say that the Opposition were voting for children to watch sex films.
§ Baroness Buscombe
My Lords, we would deny that. I do not accept that that is the case. I think that it is unfair, given that the noble Lord knows that one of my most critical concerns about the Bill has been with regard to the need to protect children. I do not believe that the amendment does anything that might cause harm to children—unless there was a potential harm. At that point, the police still have powers to become involved.
We could argue further, but it is important, in a sense, to push the boundaries as far as possible in order to send a message to honourable Members in another place stating that we believe that issues concerning music and entertainment are so important that they should consider with care all the hard work that we have carried out in this House. I should like to test the opinion of the House.
§ 6.18 p.m.
§ On Question, Whether the said amendment (No. 13) shall be agreed to?
§ Their Lordships divided: Contents, 150; Not-Contents, 120.1285
|Division No. 2|
|Aberdare, L.||Lindsay, E.|
|Addington, L.||Liverpool, E.|
|Alderdice, L.||Livsey of Talgarth, L.|
|Allenby of Megiddo, V.||Lucas, L.|
|Astor of Hever, L.||Luke, L.|
|Avebury, L.||Lyell, L.|
|Baker of Dorking, L.||McNally, L.|
|Barker, B.||Maddock, B.|
|Beaumont of Whitley, L.||Mar and Kellie, E.|
|Bowness,L.||Masham of Ilton, B.|
|Bradshaw, L.||Methuen, L.|
|Bridgeman, V.||Miller of Chilthorne Domer, B|
|Brooke of Sutton Mandeville, L.||Miller of Hendon, B.|
|Brougham and Vaux, L.||Monson, L.|
|Burnham, L.||Montrose, D.|
|Buscombe, B.||Moynihan, L.|
|Byford, B.||Murton of Lindisfarne, L.|
|Carlile of Berriew, L.||Newby, L.|
|Carlisle of Bucklow, L.||Newton of Braintree, L.|
|Carnegy of Lour, B.||Noakes, B.|
|Chadlington, L.||Northbrook, L.|
|Chalker of Wallasey, B.||Northesk, E.|
|Clement-Jones, L.||Northover, B.|
|Cobbold, L.||Norton of Louth, L.|
|Colwyn, L.||Oakeshott of Seagrove Bay, L.|
|Cope of Berkeley, L. [Teller]||O'Cathain, B.|
|Craig of Radley, L.||Onslow, E.|
|Craigavon, V.||Palmer, L.|
|Crathorne, L.||Park of Monmouth, B.|
|Crickhowell, L.||Perry of Southwark, B.|
|Darcy de Knayth, B.||Phillips of Sudbury, L.|
|Dean of Harptree, L.||Pilkington of Oxenford, L.|
|Dholakia, L.||Plumb, L.|
|Dixon-Smith, L.||Powell of Bayswater, L.|
|Dundee, E.||Reay, L.|
|Eccles of Moulton, B.||Redesdale, L. [Teller]|
|Elliott of Morpeth, L.||Rennard, L.|
|Elton, L.||Renton, L.|
|Erroll, E.||Roberts of Conwy, L.|
|Falkland, V.||Rodgers of Quarry Bank, L.|
|Ferrers, E.||Roper, L.|
|Flather, B.||Russell, E.|
|Fookes, B.||Saatchi, L.|
|Forsyth of Drumlean, L.||Scott of Needham Market, B.|
|Gardner of Parkes, B.||Seccombe, B.|
|Geddes, L.||Selborne, E.|
|Glentoran, L.||Selsdon, L.|
|Goodhart, L.||Sharp of Guildford, B.|
|Gray of Contin, L.||Sharples, B.|
|Hamwee, B.||Shaw of Northstead, L.|
|Harris of Richmond, B.||Shrewsbury, E.|
|Hayhoe, L.||Shutt of Greetland, L.|
|Henley, L.||Skelmersdale, L.|
|Higgins, L.||Smith of Clifton, L.|
|Hodgson of Astley Abbotts, L.||Soulsby of Swaffham Prior, L.|
|Hogg, B.||Strange, B.|
|Hooper, B.||Swinfen, L.|
|Hooson, L.||Taylor of Warwick, L.|
|Howe, E.||Thatcher, B.|
|Howe of Aberavon, L.||Thomas of Gresford, L.|
|Howe of Idlicote,B.||Thomas of Gwydir, L.|
|Howell of Guildford, L.||Thomas of Walliswood, B.|
|Hunt of Wirral, L.||Tope, L.|
|Hylton, L.||Tordoff, L.|
|Jenkin of Roding, L.||Trefgarne, L.|
|Jopling, L.||Trumpington, B.|
|King of Bridgwater, L.||Vinson, L.|
|Knight of Collingtree, B.||Vivian, L.|
|Laird, L.||Waddington, L.|
|Lamont of Lerwick, L.||Wallace of Saltaire, L.|
|Lane of Horsell, L.||Walmsley, B.|
|Walpole, L.||Williams of Crosby, B.|
|Watson of Richmond, L.||Williamson of Horton, L.|
|Wilcox, B.||Windlesham, L.|
|Acton, L.||Howarth of Breckland, B.|
|Ahmed, L.||Howells of St. Davids, B.|
|Andrews, B.||Hughes of Woodside, L.|
|Archer of Sandwell, L.||Hunt of Chesterton, L.|
|Ashton of Upholland, B.||Irvine of Lairg, L. (Lord Chancellor)|
|Barnett, L.||Janner of Braunstone, L.|
|Bassam of Brighton, L.||Jay of Paddington, B.|
|Berkeley, L.||Jones, L.|
|Bernstein of Craigweil, L.||Judd, L.|
|Bhatia, L.||King of West Bromwich, L.|
|Billingham, B.||Kirkhill, L.|
|Blackstone, B.||Layard, L.|
|Borrie, L.||Lea of Crondall, L.|
|Bragg, L.||Lockwood, B.|
|Brennan, L.||Lofthouse of Pontefract, L.|
|Brooke of Alverthorpe, L.||Macdonald of Tradeston, L.|
|Brookman, L.||McIntosh of Haringey, L. [Teller]|
|Campbell-Savours, L||MacKenzie of Culkein, L.|
|Carter, L.||Mackenzie of Framwellgate, L|
|Christopher, L.||Mason of Barnsley, L.|
|Clark of Windermere, L.||Massey of Darwen, B.|
|Clarke of Hampstead, L.||Merlyn-Rees, L.|
|Cohen of Pimlico, B.||Milner of Leeds, L.|
|Corbett of Castle Vale, L.||Morgan, L.|
|Crawley, B.||Nicol, B.|
|David, B.||Orme, L.|
|Davies of Coity, L.||Ouseley, L.|
|Davies of Oldham, L.||Parekh, L.|
|Dean ofThornton-le-Fylde, B.||Patel of Blackburn, L.|
|Derby, Bp.||Paul, L.|
|Desai, L.||Peston, L.|
|Dixon, L.||Prys-Davies, L.|
|Dormand of Easington, L.||Puttnam, L.|
|Dubs, L.||Radice, L.|
|Elder, L.||Ramsay of Cartvale, B.|
|Evans of Parkside, L.||Randall of St. Budeaux, L.|
|Evans of Temple Guiting, L.||Rendell of Babergh, B.|
|Falconer of Thoroton, L.||Renwick of Clifton, L.|
|Farrington of Ribbleton, B.||Richard, L.|
|Filkin, L.||Rooker, L.|
|Fyfe of Fairfield, L.||Sainsbury of Turville, L.|
|Gale, B.||St. John of Bletso, L.|
|Gilbert, L.||Sawyer, L.|
|Gladwin of Clee, L.||Scotland of Asthal, B.|
|Goldsmith, L.||Simon, V.|
|Gordon of Strathblane, L.||Smith of Leigh, L.|
|Goudie, B.||Symons of Vernham Dean, B.|
|Gould of Potternewton, B.||Taylor of Blackburn, L.|
|Graham of Edmonton, L.||Thomas of Macclesfield, L.|
|Grocott, L. [Teller]||Thornton, B.|
|Guildford, Bp.||Tomlinson, L.|
|Hardy of Wath, L.||Turnberg, L.|
|Harris of Haringey, L.||Varley, L.|
|Harrison, L.||Walker of Doncaster, L.|
|Haskel, L.||Weatherill, L.|
|Hayman, B.||Whitaker, B.|
|Hilton of Eggardon, B.||Wilkins, B.|
|Hogg of Cumbernauld, L.||Williams of Mostyn, L. (Lord Privy Seal)|
|Hollis of Heigham, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 6.27 p.m.
§ [Amendment No. 14 not moved.]
§ Schedule 7 [Repeals]:1286
§ [Amendment No. 15 not moved.]
§ Schedule 8[Transitional provision etc.]:
Lord Avebury moved Amendment No. 16:
Page 160, line 22, after "conditions" insert "or undertakings
§ The noble Lord said: My Lords, we return to the subject of undertakings. I realise that we have already covered it in some detail, but not to the satisfaction of my noble friends and myself and, I think, others on this side of the House. We see undertakings as an integral part of the old system. We are very disappointed that they are not being carried over into the new regime.
§ Undertakings offered to the court by applicants contain many of the matters which reassure members of the public about environmental and nuisance concerns. Sometimes, those have to be fought for at great length. It is a backward step not to incorporate them into the new regime. I refer to situations where, in deciding whether to grant or renew a licence, a court has found that a material matter is at stake.
When we dicussed this matter on 4th March, the Minister said that the way to deal with undertakings was for an interested party to apply for a review of the premises licence,
if a licensee does something, or fails to do something. which was previously the subject of an undertaking, provided of course that the act or omission relates to the licensing objectives".—[Official Report, 4/3/03; col. 781.]
§ I can see two objections to that procedure. First, the licensee could surely argue that, if Parliament itself did not see fit to carry forward the undertakings, then he was under no obligation to honour them. The undertakings had no legal force previously, as we have been reminded, and now Parliament has deprived them of any moral force that they might have had.
§ Secondly, the failure to observe an individual undertaking might not have a significant impact on the licensing objectives as it might be very difficult to show that it had. The burden of proof is being shifted on to those who want the undertakings to be maintained and they are asked to undergo all the trouble and expense of invoking the Clause 51 procedure when they are not asking for the licence to be revoked but merely for the undertakings to be restored. If the objectors are successful in persuading the licensing authority that the grounds for a review—that is, that the licensee is no longer complying with undertakings given under the previous regime—are not frivolous or vexatious, and that each of the grounds is relevant to one or more of the licensing objectives, there has to be a full hearing at which the objectors would be obliged to present all the evidence that led to the undertaking being given in the first place. The licensing authority would then have the power, under Clause 52(4)(a), to modify the conditions of the licence as it saw fit. Presumably one way in which it could do so would be by re-attaching the undertakings in the form of conditions. Would it not save an awful lot of unnecessary work if your Lordships did that for them?
§ We have talked about this as though the undertakings would normally cover only one or two relatively minor issues, such as a pub ensuring that the 1287 customers do not leave the premises with a glass after 10 o'clock at night—an example cited by the Minister— presumably in order to prevent the disorder that would arise from using the glass or a broken part of it as a weapon.
§ The problem is that although each undertaking might be comparatively small, cumulatively they might be of great importance, certainly to residents in the vicinity and arguably to the achievement of the licensing objectives. I was given an example this morning: in this application, the justices attached seven conditions to a licence and no fewer than 13 undertakings, some of them of no minor significance. For example, each morning, not before 8 a.m., cleaning contractors were to clean the frontage of the premises so as to remove any bottles, glasses, spillage from rubbish bins and evidence of urination, vomiting, and so on, by hot washing. If I were a resident of the neighbourhood, I would regard that as particularly important.
§ Are we now saying that the licensee can omit to perform the obligations he has just taken on? This application was heard in November; it is of very recent origin. If so, we are in effect telling the licensee that he does not need to bother with that any more. He can omit to carry out the washing and the cleansing of the front of the premises, no matter how much of a nuisance that will be for people living in the neighbourhood.
§ The undertakings have been a flexible and effective tool of the licensing system. They have helped to ensure that licensed premises operate in a manner so as to prevent unreasonable diminution of amenity and the environment in accordance with what is now the third of the licensing objectives. It would be the height of folly to throw all that work away and start again from scratch. I beg to move.
§ Lord Brooke of Sutton Mandeville
My Lords, in six years of specialist study of the classical languages, in writing Latin and Greek prose and verses, only one single line of mine in Latin verse received the commendation of Katharine Whitehorn's father, who had the challenge of teaching me. I shall not be so immodest as to read the Latin pentameter into the record but the English line I was translating was to the effect that, "The raucous voices of the long path resound". The long path has a certain relevance to the four years of the Bill's gestation and the point we have now reached in its progress in this House.
The raucous voices are also apposite to the amendment because the undertakings to which it refers, as the noble Lord, Lord Avebury, has so ably described, are often the fruits of not just a single argument but arguments that have gone on for years and years. In a recent case in the west end, it took seven years of persistent and persevering protest to secure a particular undertaking on the part of the licensee.
The Minister seemed, perhaps unintentionally, to undervalue the amount of time and perspiration that has gone into securing, in dozens of cases, what are 1288 known as undertakings. In the long path of licensing history, these undertakings, as seen by residents—who, prior to the undertakings, had to pay the price of raucous sounds—are milestones. The Bill will level them at a stroke and their re-erection will seem like a labour of Sisyphus to the residents or vicinity dwellers—to bring in those who are not residents—who have to take on the licensees, whom the Minister described today, in the context of licence fee payments, as being largely businesses, with all the greater resources that businesses have over residents. It really will be a very sad day if, when the Bill becomes an Act, those undertakings eventually turn out to be as nought. I support the noble Lord, Lord Avebury, in his amendment.
§ Lord McIntosh of Haringey
My Lords, this is a particularly difficult part of the Bill. All transitional parts of Bills are difficult. Schedule 8 is about the transition from a justices' licence to a premises licence. Paragraph 2 of Schedule 8 is about the conversion of an existing justices' licence to a premises licence. Paragraph 6(6) preserves the conditions, in effect, at the time of the transfer. The amendment would add any undertakings in force.
We introduced these provisions in Schedule 8 because the industry was concerned about the damage that would be caused if we went back to zero budgeting, so to speak, threw all the cards in the air and got rid of the automatic transfer of licences subject to conditions. But the amendment seems to ignore the fact that there can and will be, at the time of the conversion to a premises licence from a justices' licence, applications to vary the licence. Under the more liberal regime which is being proposed, there will be changes. Since noble Lords have just voted virtually to abolish entertainment licensing, I shall not refer to that, but there will certainly be applications to vary the time of opening. In the far-off days of entertainment licensing, there would have been applications for live music licensing, and so on. All those changes would he within the protection of the licensing regime, and representations would be possible on all those variations. It is in the applicant's interest to give as much detail as he can to convince the responsible authorities and interested parties not to make representations. The very nature of the transition process means that there will be proper consideration of the licence in many cases. The kind of automatic transfer described by the noble Lords, Lord Avebury and Lord Brooke, is not the only scenario we are considering.
What are undertakings? They are matters which have been volunteered by a licensee or an applicant for a licence when the licence would otherwise be in doubt. I have no reason to quarrel with any of the examples which have been given. The noble Lord, Lord Avebury, did not seem to like our example of not taking glasses outside after 10 o'clock, although it is important for those living in the area that there should not be noise and broken glass. A lot of undertakings are temporary. For example, a licensee might agree not to have more than a certain number of people in the 1289 premises pending the construction of a new fire exit. There could be temporary undertakings on all sorts of grounds relating to the physical conditions of the premises. Although the undertakings are there to reassure residents, I think the noble Lord, Lord Avebury, recognised that they have no legal force and there can be no criminal prosecutions if they are broken.
The Bill offers protection whenever there is an application to vary a licence that is being converted into a premises licence. Secondly, a review can be requested, which would trigger the need to seek the opinions of responsible authorities and interested parties, including residents. With that protection, to carry over all undertakings, including temporary ones, goes beyond the needs of the case. The Bill as drafted meets the points that were raised in the reasonable speeches of the noble Lords, Lord Avebury and Lord Brooke. I do not believe that their amendment is necessary or desirable.
§ Lord Avebury
My Lords, I am disappointed by that reply, as I have been with answers that we have had at earlier stages on the carrying-over of undertakings. I cannot see the logic in the Government's distinction between conditions, which are carried over, and undertakings, which are not. The list that has been supplied to me of conditions and undertakings that are agreed as part of the award of a licence shows no fundamental distinction in the nature of the two processes. A restriction on the permitted hours of the premises on a Sunday is listed as a condition, but the question of noise limitation is an undertaking.
It would he much simpler for licensees and for those in the vicinity who are affected to incorporate conditions and undertakings in a temporary licence and to start from that point with the process of review that the noble Lord, Lord McIntosh, mentioned. There would be the presumption that both sets of conditions—using the word in the general sense to apply to conditions and undertakings—would continue in force unless they were the subject of a variation that had been agreed by the parties concerned. That would be the logical way to deal with the matter.
I hope that the Commons will continue to pursue the argument and will try to extract from the Government some more logical explanation of the reason for the distinction. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ An amendment (privilege) made.
§ 6.45 p.m.
§ Moved, That the Bill do now pass.—(Baroness Blackstone.)
§ Baroness Buscombe
My Lords, I shall be brief. I thank noble Lords for their participation in this important and complex Bill. We are pleased and 1290 grateful that the Government have made a considerable number of important concessions as a result of our debates. In the words of my noble friend Lord Brooke, we pay tribute to the flexibility that the Government Front Bench have shown.
In addition, the Government have been defeated nine times on important issues. Together with government concessions, these achievements have resonated to an extraordinary degree in the country at large. People connected with our churches, our schools and our village, parish and community halls, together with our musicians—in relation to performance and copyright—publicans and local councillors and many others have supported our amendments, as well as, perhaps most critically, parents concerned with the well-being of their children, who have urged us to effect changes to the Bill.
In turn, I urge honourable Members in another place to consider with care the changes that have been made to the Bill in your Lordships' House. They should note the overwhelming support that we have received and continue to receive in the country. I ask the Government to think hard before taking any steps that would compromise the hard work of noble Lords on all sides of your Lordships' House.
§ Lord Redesdale
My Lords, I, too, commend the work done by the noble Baroness, Lady Blackstone. I also thank the noble Lord, Lord McIntosh, for dealing in such a kindly manner with all issues in the Bill, and the noble Lord, Lord Davies of Oldham. I also thank the noble Baroness, Lady Buscombe, who has done sterling work, often alone on the Front Bench, in helping to improve the Bill. I also thank my noble friend Lord Phillips of Sudbury, who has been successful in the most surprising of ways, and my noble friend Lord Avebury, who has also put in such sterling work.
We believe that the Bill has been improved by some of the amendments that have been made. We are not certain that the Government will accept every amendment in its entirety in another place. However, we take heart from the letter today, which shows that the Government have taken on board our concerns, especially about music, but also in other areas. We also hope that the Government will take on board the spirit in which those amendments were moved and will bring the Bill hack to this House at a later stage without too many drastic modifications so that we can pass it, because we support the Bill.
§ Baroness Blackstone
My Lords, I am enormously grateful to my noble friends Lord Davies of Oldham and Lord McIntosh of Haringey for their huge support on the Bill. On their behalf, I thank the Opposition Front Bench spokesmen—the noble Baroness, Lady Buscombe, and the noble Lord, Lord Redesdale—and everybody who has taken part in our deliberations on the Bill. We have been given a very good run for our money. I can guarantee that honourable Members on the government side in another place will read very carefully the debates in this House. I can say with absolute certainty that they will not accept all the 1291 amendments that have been made here. However, when they reject them, they will do so having given considerable thought to what has been said in this House.
We look forward to further debates on the Bill later in the Session, when it comes back from another place.
§ On Question, Bill passed, and sent to the Commons.