Mr Andrew Turner (Isle of Wight, Conservative)

I beg to move amendment No. 100, in

clause 8, page 5, leave out lines 13 and 14.

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following:

Amendment No. 94, in

clause 8, page 5, line 19, leave out

'(unless the matter is urgent)'.

Amendment No. 93, in

clause 8, page 5, line 22, leave out '5(b)' and insert '5(a)'.

Amendment No. 95, in

clause 8, page 5, line 30, after 'unable', insert

'by virtue of conflict of interest'.

Mr Andrew Turner (Isle of Wight, Conservative)

I shall deal with the amendments in that order, Mr. Gale. Amendment No. 100 would remove from the authority the power to arrange for a committee that is not the licensing committee to discharge the licensing function, because there would be a potential conflict of interest on such a committee. [Interruption.] The hon. Member for North Devon, ever ready to ask the difficult question, says, ''How?'' I would have thought that the answer was quite simple: if a recreation committee is determined to put on a pop festival and the licensing authority delegates to that committee the power to determine whether to grant the licence for that entertainment, there is an immediate conflict of interest for the members of that committee, who are about to commit themselves to the pop festival enterprise—not financially, but as members of the local authority. They may be the executive members of that authority. An authority might delegate the licensing function to the executive of the authority, which had committed itself in principle to putting on a pop festival. Then, the executive could be asked to operate wearing its quasi-judicial hat, and might be asked to determine the licensing application that it had submitted for the running of that pop festival. I would consider that to be a profound conflict of interest.

Mr Kevan Jones (North Durham, Labour)

Why?

Mr Andrew Turner (Isle of Wight, Conservative)

I must cease to be taken in by every mouthed intervention that the hon. Gentleman makes; otherwise the Committee will last forever. There is a conflict of interest because someone who has set themselves a political purpose tends not to be in a judicial frame of mind when considering the law relating, not to that purpose, but to whether a planning application or a licence of that kind should be issued. It is important that the committee be in a judicial frame of mind.

A second argument is that members of licensing—and planning—committees will need to be trained to ensure that they approach issues in a suitably judicial manner. I have been advised on the subject by my local authority's head of paid service. If the licensing committee is to be trained, but people who can exercise the power but are not on the licensing committee are not, there may be defects in the decisions that the latter take. It is inappropriate to delegate a licensing decision to a non-licensing committee, first because of the lack of training—unless, of course, the Minister intends to write a requirement for training into the Bill—and secondly because of the danger of a conflict of interest.

Amendment No. 94 would allow certain things to be done in urgent cases. I recognise that things may sometimes be urgent, but it is easy for local authorities to leave the preparation and presentation of reports until they become urgent, and then they are not bound by the same rules as they would be if they had not left them. That is a loophole that needs to be plugged, not

only in this case but in a range of local authority business. Indeed, Ministers in the Department for Education and Skills have plugged similar loopholes with regard to governing bodies; there is now a definition of ''urgent''.

Amendment No. 93 would require a licensing authority to ask the licensing committee before handing its power to another committee. Of course, I understand why subsection (5)(b) is included, but I would have thought that subsection (5)(a) was rather more important, and that the licensing authority should consult the licensing committee before the committee gave up a power, or had a power taken away from it by the executive or by the recreation committee.

Finally, amendment No. 95 sets out the conditions in which it may be inappropriate for the licensing committee to discharge its functions. If it cannot discharge a function because many of its members have a conflict of interest, it is not unreasonable that the matter should be discharged elsewhere. Otherwise, however, it is not appropriate for something to be referred willy-nilly to other committees of the authority.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

The hon. Gentleman is making a serious attempt to rewrite the way in which local authorities work, but it is beyond the scope of the Bill to do so. He is trying to create a model of excellence that could be replicated elsewhere. The trouble is that I am unsure whether many of us agree with his model.

Lying behind the amendments is a fear that local authorities cannot be fully trusted to discharge their licensing and other statutory functions properly. As I have made clear, I do not share those concerns and I am worried that the amendments would limit the ability of local authorities to carry out those functions in an efficient and timely manner, and in the best interests of the community that they serve.

As drafted, the Bill allows licensing authorities in respect of a matter to refer the discharge of licensing functions to other local authority committees where that matter relates to the discharge of another local authority function as well as to the licensing function. In addition, it allows licensing committees to consider matters that cut across other local authority functions. Furthermore, unless the urgency of a particular case precludes it, where matters that touch on licensing are referred to another committee, that committee must consider a report from the licensing committee before reaching a decision.

Those arrangements will ensure that the licensing committee will have the necessary input, while allowing authorities the freedom to decide how best to discharge their functions. Amendments Nos. 100, 94 and 93 would undermine that position, and could lead to unnecessary delays in the exercising of licensing and in other functions of an authority.

Amendment No. 95 would require that where there is a conflict of interest preventing a number of members of the licensing committee from discharging a function, it must be referred back to the licensing

authority. I acknowledge that our position has changed since the publication of the White Paper—I was waiting for the hon. Member for Isle of Wight to say that, but he did not.

Mr Andrew Turner (Isle of Wight, Conservative)

I did not notice.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

I do not blame the hon. Gentleman for that.

In the White Paper, we suggested that any councillor representing the ward in which premises that are the subject of proceedings are situated should not participate in the licensing decision. The intention was to avoid the possibility of elected individuals coming under undue pressure. However, I assure the Committee that we have looked into the matter and we are confident that existing provisions under local authority legislation governing the way in which local authorities discharge the functions vested in them already ensure that where it is improper for an individual to be involved in a licensing decision, self-disqualification would take place. There is no need to amend the Bill to reflect the fact that where councillors have, for example, a financial interest in the outcome of a decision, they should not be part of any decision. Existing provisions would apply.

I have every confidence that local authorities will be able to discharge their many functions effectively and impartially and that existing standing orders governing issues of propriety offer effective safeguards. The system set out in the Bill will ensure that licensing decisions benefit from the participation of councillors with knowledge of the local area and from a joined-up approach that allows licensing to be seen in the wider context of other local authority responsibilities.

I hope that as a result of those reassurances, the hon. Member for Isle of Wight will withdraw his amendment.

Mr Andrew Turner (Isle of Wight, Conservative)

I am grateful to the Minister for recognising the intent behind the amendment. I do not wish to re-engineer the whole process of local government in England and Wales—that would be too ambitious. I am not entirely happy with the hon. Gentleman's explanations, but I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Malcolm Moss (North East Cambridgeshire, Conservative)

I beg to move amendment No. 86, in

clause 8, page 5, line 32, at end insert—

'(9A) Nothing in this Act shall detract from the right of an elected member of a council that is a licensing authority under this Act to address or write to the licensing committee or licensing authority in order to make representations to them on behalf of the residents of the ward or other electoral subdivision, or the authority which he represents.

(9B) No elected member making representations on behalf of local residents under subsection (9A) may participate in any decision made by the licensing committee or licensing authority concerning a matter about which he has made representations to them, either in public or in private.'.

Amendment No. 86 deals with the functions of the licensing authority. It is an addition after clause 8(8), and would protect both the interests of local residents and those of the licence applicant by attempting to

ensure that local councils were transparent and impartial. The function of local councillors is, of course, to represent the views of local residents, who may, and will, object, and who may object in greater numbers, given some of the content of the Bill. Those people will object to their councillor about particular premises and applicants; that is their right and we would not want to undermine it. However, an individual councillor will represent the views of his local electorate to the licensing committee, to the full council, or simply to the officers in the first instance, to talk the problems through. Councillors may find themselves in a rather difficult position if they are also members of the licensing committee or sub-committee that would make a final decision.

Mr Bob Blizzard (Waveney, Labour)

Is the hon. Gentleman aware of the guidance given to local government some years ago by Lord Nolan? He examined the issue in great detail in connection with planning, but there are parallels with the current debate. Lord Nolan made it clear that a member of such a committee must balance the heed he must take of statutory guidance with the views of his constituents. That contradicts the advice, referred to by the hon. Member for Isle of Wight, that certain planning officers were sending out.

Some people are elected to councils on a ''Stop the so and so planning application'' ticket, and in the context of the current debate, that may be a licensing ticket. If someone is elected because of a position they have taken, they cannot be debarred from putting forward the wishes of their electorate to a committee. Nolan was clear about that. There must be a balance. Someone should not be ruled out just because they have previously expressed a view.

Mr Malcolm Moss (North East Cambridgeshire, Conservative)

I hear what the hon. Gentleman says. I know from experience that individuals on the planning committee of one of my local councils were told by the council's solicitor not to take part in a discussion at all, because something was happening in the area in which they lived. We have gone to ridiculous lengths to prevent elected councillors from speaking their mind on all sorts of issues. I am simply highlighting yet another potentially compromising situation for those who may be approached by local residents on a big local issue. If councillors wanted to retain their seats, they might be pushed into representing strongly held views.

Mr Jim Knight (South Dorset, Labour)

Does not clause 14(3)(e) state that local ward councillors are interested parties? Therefore, they can make a representation according to the established practice of, and quasi-judicial functions carried out by, the local authority, which means they must approach a decision with an open mind. If a local ward councillor, or any other councillor, had previously stated their position they should not take part, because they would not be going into a decision with an open mind.

Mr Malcolm Moss (North East Cambridgeshire, Conservative)

I am not sure that I read it that way. Our amendment acknowledges the first part of the hon. Gentleman's intervention, which is that councillors have a duty to represent those views—I would not stand against that. However, we are also saying in our proposed new subsection (9B) that having made such a representation, those councillors should absent

themselves from any decisions on a licence for fear of their participation being perceived in a certain way. This is all about perception; Nolan is about perception. All the rules and regulations that come flooding down relating to the conduct of councillors, and even Members of Parliament, are about how people are perceived by the general public. We all have to be whiter than white.

The proposed new subsection is simply an attempt to say, particularly to those who have opposed the switch from magistrates to local authorities, that there was in the main a trust that the magistracy would be impartial, and a belief that it had a good record of judging things on their merits and not being influenced politically—with a small or a big ''p''—as it did not rely on votes from local electorates to keep someone's place on the council.

This morning I referred to a situation that might arise just before an election, when a group of people would get together and make a big fuss about something. The local councillor would then be put in a difficult position. He might be on the side of the publican—the licence holder—but because of the fuss that had been caused, he might feel obliged to represent other views. Our proposed new subsection states that he should absent himself from the decision making related to such a case. That is clear cut. Having quickly read clause 14(3)(e), I am not convinced that the Bill means what the hon. Member for South Dorset (Jim Knight) thinks it does. The Minister will no doubt clarify that in his response.

Amendment No. 86 is not new. It was tabled in a similar form in the other place, and was rejected by Government. We have returned to it because it addresses something that to date has not been properly answered; it has also been raised with Conservative Members, and we believe that it ought to be registered in the Bill for the sake of impartiality.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

The amendment would provide that nothing in the Bill would detract from the right of an elected member of a council that was a licensing authority to address or write to the licensing committee to make representations on behalf of their constituents or the authority that they represented. It then goes on explicitly to disqualify the elected representative from sitting on the licensing committee and judging the issue on which they have made representations on behalf of constituents. That constraint would not apply to representations on behalf of an authority.

I shall deal with representations made on behalf of constituents first. The Government have tabled an amendment, which we will discuss later, that will, if accepted, overturn an amendment made to the Bill in another place. It will make Members of the European Parliament, Members of Parliament and local ward councillors interested parties in respect of the part of the Bill that deals with premises licences. Having the status of interested parties will enable them to make representations, as defined for the purposes of that part of the Bill, about premises licences, and to request a review.

We will attempt to overturn the amendment that was made in another place because we do not consider that such persons in their own right should have the ability to make representations. I stress the words ''in their own right'', as the Government accept that local councillors, MPs, MEPs, solicitors, friends, relatives or anyone else should be able to make representations on behalf of a local resident if asked to do so. There was nothing in the Bill as originally drafted to prevent that.

The effect of the provision does seem remarkable when first encountered. When I first read it, I thought, ''Hang on, I'm the MP for Pontypridd, and if I want to say something about an aspect of life in the constituency, I shall''—and I usually do, although the local authority does not often like it. I shall therefore try to explain why the provision is not quite as it seems. The subtle difference with amendment No. 86 is that in allowing representations to be made on behalf of constituents it would allow them to be made even when no constituent had asked for them. It cannot be right that such representations could be made without any request from the individual who would be directly affected by the issue in question. That would allow a councillor to challenge an application in a part of his ward even if those who lived around the premises in question were in favour it.

For example, the hon. Member for Isle of Wight said that he lived in the middle of Cowes, and if licensed premises in his street or near his back garden were directly detracting from the quality his life and that of his neighbours, he would have a perfect right to object or to ask for a hearing. That is not the same as someone who may live many miles from such premises away grumbling about a licence application or wanting the licence to be modified. He may have been influenced by a lobby organisation. All of us in the Room are subjected to approaches by national lobbying organisations.

Mr Malcolm Moss (North East Cambridgeshire, Conservative)

I am not sure that I heard the Minister correctly. Referring to a local ward councillor covered by clause 14(3)(e), I think that he said that the way in which we worded the first part of amendment No. 86 would mean that an elected councillor could make representations to the licensing committee of a council on behalf of local people who had not approached him to do so, and that he could take such action off his own bat if he personally objected to what was happening. A person cannot represent local people unless there are views to be represented.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

Absolutely; I have no beef with that argument. I have tried to make it clear what the position would be if there were no representation and no objection to a licence application. That is where the provision kicks in. If the local councillor who does not live in that part of town and is not directly affected by the problem decides off his own bat to object, even though no one has asked him to, that is the difference. I am not sure that there is a difference between the hon. Gentleman and myself on that matter, but I hope that I have made the position clear. We shall discuss MPs and MEPs later.

Mr Andrew Turner (Isle of Wight, Conservative)

There may not be a difference between the Minister and my hon. Friend the Member for North-East Cambridgeshire on the Front Bench, but that is not to say that there is not a difference between the Minister and his hon. Friends on the Back Benches. A councillor, like a Member of Parliament, is a representative, not a delegate. He is entitled to form a judgment on what is right or wrong for his area, even if no representations have been made to him. That sometimes happens. If, for example, elderly people's housing, or a home for those who are mentally infirm, adjoins a pub, it is possible that none of the residents will object, but that does not invalidate the idea that a councillor can act on their behalf. It certainly does not invalidate a councillor's ability to make representations on their behalf.

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

I am not for one minute arguing that we should prevent a councillor from making representations on behalf of residents who object to a licence application. I have made that clear time and again. We object to members of the council that sets up the licensing authority stepping in and objecting to an application, even though they would not be affected by it and not one objection has been made about it. Indeed, support for it may have been expressed. [Interruption.] I think that the hon. Member for Isle of Wight said from a sedentary position that he was not objecting to that. I am trying to clarify the distinction between a councillor who acts on behalf of someone and a councillor who takes it on himself or herself to object to a licence application.

Mr Malcolm Moss (North East Cambridgeshire, Conservative)

I am delighted that the Minister agrees with proposed new subsection (9A), in amendment No. 86. It is explicit. It does not refer to any elected member of a local authority, but to an elected member of council who makes representation

''on behalf of the residents of the ward or other electoral sub-division, or the authority which he represents.''

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

Yes, I have made that clear.

Mr Malcolm Moss (North East Cambridgeshire, Conservative)

So you knew that?

Dr Kim Howells (Parliamentary Under-Secretary, Department for Culture, Media & Sport; Pontypridd, Labour)

I should not conduct a conversation like that across the Room, Mr. Gale—nor shall I.

The amendment would not make such persons interested parties for the purposes of the Bill, but it would achieve that effect indirectly. We cannot accept it, because such people are not professional experts in respect of the licensing objectives, or entitled to act in the capacity of an elected member of the council, a local resident or someone who is in business locally. As I have said, if the person is a local resident, that is a different matter.

The amendment would also expressly prevent a councillor making representations on behalf of constituents from being involved in decisions about the matter in question. One aim of the amendment may be to address specific fears that councillors might be involved in decisions about premises in their wards, as those are the premises that they or their constituents are likely to be worried about.

I expressed in a previous debate the Government's confidence in existing measures and mechanisms in

respect of the way in which local authorities discharge the functions vested in them. My hon. Friend the Member for Waveney reinforced that argument when he referred to the Nolan rules, which are clear and specific. The amendment would also allow the elected member to make representations on behalf of the authority that he represents, a point made by the hon. Member for Isle of Wight. We shall be discussing a relevant amendment later and, if accepted, it will overturn an amendment that was made in another place, which makes a licensing authority a responsible authority under the Bill.

The intention of that amendment is that a licensing authority in which the premises is situated should be able to object to an application for the grant of, or a variation of, a licence and complain about certain premises and thus give rise to a review of the licence. Amendment No. 86 would not make the licensing authority a responsible authority but, by allowing an elected member to make representations on its behalf, would give it a similar status by the back door.

The licensing authority itself will fulfil the role of deciding the merits of the application to grant or to vary a premises licence. In doing so, it will need to weigh the merits of any representations. If no representations were made about an application to grant or to vary a premises licence, the application must be granted in accordance with the proposal by the applicant. The licensing authority's discretion is engaged only when relevant representation has emerged. That allows there to be a considerable reduction in bureaucracy. It means that only potentially problematic premises would be the subject of more detailed scrutiny at a hearing. The others would be dealt with simply and administratively.

However, the proposed amendment would leave the system open to substantially more bureaucracy with the licensing authority, through its elected members. It would be able to challenge every application even though professional and expert bodies, such as the police and fire authority, and local residents were perfectly content. The licensing authority would also effectively be making representations or complaints to itself and then judging the merits of the representation. That is not ideal. It would disturb industry, which is concerned about the overly zealous behaviour of some local authorities.

Under the Bill, specialist local authority officers, such as environmental health officers, can make representations to the licensing authority on the basis of their expertise. Although they will form part of a local authority, their views and the capacity in which they make representations in fulfilling a separate statutory function to licensing functions are both technical and expert on, for example, noise penetration. It is entirely proper that their expert views should be engaged.

The amendment would broaden the approach to general issues, which is not appropriate in the context of the regulatory role that the local authority as the licensing authority will perform. In exercising its regulatory role when it is engaged, the licensing authority will have all the tools that it needs to reach

a decision on the competing interests in the overall public interest, being fully informed by the input from responsibilities authorities and interested parties. With that reassurance, I hope that hon. Gentlemen will withdraw the amendment.

Mr Malcolm Moss (North East Cambridgeshire, Conservative)

The amendment has generated a fair amount of debate. I thought at one stage that the Minister agreed with the first part of the amendment. However, he rescued himself by saying that the words ''or the authority'', by allowing local councillors to represent the views of their electorate in the ward or the electoral sub-division that they represent, not the views of the authority, would compromise its main thrust. I accept the hon. Gentleman's argument that the words ''the authority'' might enable a councillor to speak on behalf of his authority, without the representation and support from local residents to challenge various licence applications.

If the Minister were content with most of the amendment, why has he thrown it out on the basis of a couple of words? I am surprised that he did not draft a Government amendment to say that such a proposal was fine, apart from the words ''or the authority'' that we have unfortunately left in the amendment. We shall be returning to clause 14(4)(e), which gives local authorities, as responsible authorities, the power in some respects to challenge certain decisions and become the arbiters of their own judgments.

I take on board the hon. Gentleman's argument about ''the authority''. On the basis of his ministerial response, unfortunately I shall have to retire, licking my wounds. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.