Clause 5 - General duties of licensing authorities
Licensing Bill [Lords]
10:00 am
Mr Malcolm Moss (North East Cambridgeshire, Conservative)
The key Opposition amendment in this group is No. 118, which would add to the list of licensing objectives. During our debate, we have discussed what activities should and should not be included in the scope of a licensing Act. That has exposed a fundamental flaw: during the translation of the proposal from the White Paper to the legal framework, the whole purpose of licensing seems to
have been lost, with overdue attention being paid to what has been termed as the licensing objectives.
The purpose of licensing in any activity or business is to give permission for something to occur that would otherwise not be permissible. Much has been said about the effects of the Bill as it stands, but little so far about its fundamental purpose. Few would disagree that the sale of alcohol should be regulated; the need to acquire a licence strengthens the effect and efficacy of the enforcement of that regulation. However, it is different to claim that the objective of the licence is to prevent crime and disorder, protect the amenity of the area and protect the public from harm, which is what the Bill sets out as its objective. The licence merely gives permission for alcohol to be sold and states the conditions under which it must be sold. The so-called licensing objectives that appear in clause 5 are much more duteous on those holding the licence—they should uphold them since knowingly contravening them can result in the removal of permission through the revocation of the licence.
It is questionable as to what activities should be licensed under the Bill. It is sponsored by the Department for Culture, Media and Sport, but nowhere does it actively seek to promote the social life of the country. The main purpose of providing a licence is to give permission to do certain things and our amendment would make it clear that, in considering a licence, the promotion of social, cultural and sporting activity is as important as the promotion of public safety, nuisance issues and the prevention of crime and disorder.
Amendment No. 42, which was tabled by my hon. Friend the Member for Cities of London and Westminster, deals with amenity. Government amendment No. 8 would delete huge sections of clause 5(2)(c), which deal with amenity. It is important that we tease out from the Government why they are so much against amenity and in favour reintroducing the concept of nuisance to the Bill. The Secretary of State said in Parliament on 24 March 2003 that the Government did not intend to accept the amendment made in the other place to add the protection of amenity as an objective—that intention is clear from Government amendment No. 8.
The introduction of a licensing objective under which amenity generally may be considered can only constrain the ability to address public nuisance if the existing public nuisance objective is removed from the Bill. However, it is agreed in some quarters that that objective should remain. In fact, the term ''public nuisance'' may constrain the ability of licensing authorities to take into account all the potential adverse impacts that licensed premises may have, as it is a phrase that has been given a specific and relatively narrow meaning by the courts in the context of environmental protection. The term ''amenity'' does not have that disadvantage. It is wrong to suggest that amenity in planning terms solely concerns aesthetic and visual appearance. The word has been given a wide meaning by the courts in a planning context. In the case of Ellis v. Ruislip-Northwood UDC 1920, it was interpreted as
''pleasant circumstances or features, advantages''.
Under section 102 of the Town and Country Planning Act 1990, for example, planning legislation requires a local planning authority to have regard to the interests of amenity. Such provisions have never caused problems or difficulties of interpretation. Given what I said about amenity, will the Minister explain why the Government consider it necessary to remove from the Bill any reference to amenity, as amendment No. 8 would do? There is a place for amenity. Surely the Bill's objectives are to promote cultural and social activities. After all, most people drink in a social context when they go out to enjoy themselves. We recognise that that activity needs to be licensed, but surely we must accept that, if drinking alcohol is lawful, the objectives should encompass some definition of why people undertake such activities.