Mr Andrew Turner (Isle of Wight, Conservative)

I beg to move amendment No. 176, in

clause 13, page 8, line 4, leave out 'subsection (3)' and insert 'subsections (3) and (3A)'.

Mr Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment No. 212, in

clause 13, page 8, line 11, at end insert—

'(3A) Where the applicant or owner of the premises is the licensing authority in whose area the premises are situated, the Secretary of State shall designate another licensing authority as the relevant licensing authority in relation to the application.'.

Mr Andrew Turner (Isle of Wight, Conservative)

The amendments bring us back to our earlier discussion on amendment No. 99, and refer to the power of the local authority to be judge and jury of its own case.

During the last sitting but one, somewhat extravagantly, I accused the Minister of trying to rewrite the whole of local government procedure, but he accused me of trying to rewrite a good deal of local government legislation when we debated amendment No. 99. We are dealing with a tremendously important matter of natural justice. If one applies for a license in a quasi-judicial proceeding, one should not also determine whether that license should be issued. If I were arraigned for some unfortunate behaviour, such as driving with a defective rear light, I doubt that the Minister would be satisfied if I were then able to sit on the magistrates bench and say, ''You shouldn't have done it, but in the circumstances we find you not guilty.'' That would be an abuse of natural justice and a defective procedure, and it would be widely misunderstood.

Local authorities giving themselves licences, as is the case with local authorities giving themselves planning permission, will be widely misunderstood and mistrusted. I want the Minister to think of a better way to solve the problem. I have exercised my imagination in every conceivable manner. I tried amendment No. 99 and amendment No. 177, which you, Mr. Gale, found to be defective, and I appreciate why. I am now trying something different. If the Minister can come up with a route other than the one that I proposed in those amendments and in amendment No. 212, I would be very happy. I am sure that he wants to make me happy.

It is not ideal to give a power to the Secretary of State, but because on this one occasion I cannot think of anything better, amendment No. 212 would do that.

Mr Kevan Jones (North Durham, Labour)

Is not it the case that if a local authority could give itself a licence, as it can under planning legislation, any objection to it could still be heard in a magistrates court? Also, if there were a case of maladministration, it could be reported to the local government ombudsman.

Mr Andrew Turner (Isle of Wight, Conservative)

I shall deal first with the hon. Gentleman's second point, because there is a question about it, to which it is important that the Minister give a straight answer. The local government ombudsman denies that he has the power to act if there is an alternative tribunal.

Mr. Jones indicated dissent.

Mr Andrew Turner (Isle of Wight, Conservative)

I shall illustrate my point by reference to special educational needs. The local government ombudsman has told people in my constituency that he will not consider cases of maladministration in the provision or otherwise of special educational needs statements because there is an alternative tribunal—the special educational needs tribunal. If the Minister denies that, I shall go straight back to the local government ombudsman, tell him that he is behaving incorrectly and ask him to deal with a host of applications by my constituents, who are unhappy about the way in which the local authority has dealt with their special educational needs statements. However, I suspect that the Minister will not be confident enough to deny it.

Mr Kevan Jones (North Durham, Labour)

Is not the ombudsman correct to say that he cannot sit in judgment in special educational needs cases? However, he or she can deal with maladministration in the process if it has taken place, even for special educational needs.

Mr Andrew Turner (Isle of Wight, Conservative)

The problem with that—I am trying not to forget the point that the hon. Gentleman made about the magistrates court—is that the local authority may have reached a perfectly justified and correct decision through the administrative procedure, but members of the public may believe that it does not take full account of the demands of natural justice. If the procedure set out by legislation denies natural justice, all that the local government ombudsman can say is, ''The authority followed the procedure and there is no maladministration.''

Mr Adrian Sanders (Torbay, Liberal Democrat)

I am warming to the hon. Gentleman's argument. The problem with the ombudsman route is that the local authority is not obliged to accept his decision in any case. The hon. Gentleman makes a debating point, rather than a point that is relevant to the Bill.

Mr Andrew Turner (Isle of Wight, Conservative)

The hon. Gentleman brings us to the demolition of the argument of the hon. Member for North Durham. If I had been sufficiently astute, I would have thought of that. I confess that I did not, but I shall deal with the matter shortly.

The public may view the procedure in the Bill as defective. The local government ombudsman can do nothing if the correct procedure is followed and there is no maladministration, but the decision may be defective if it denies the objectors natural justice. However many magistrates court appeals provisions there are, if the procedure is correct, there is nothing that appeals tribunals can do about it.

I have tabled the amendment because I believe that the procedure is defective and should not be in the Bill. It is not right that one should be judge and jury in one's own case. I have used that phrase a number of times.

Mr. Jones indicated dissent.

Mr Andrew Turner (Isle of Wight, Conservative)

The hon. Gentleman does not like it: he shakes his head, but he has been unable to demonstrate that in this case the licensing authority is not judge and jury. He may think that in North Durham things are done so spectacularly well that the licensing authority never has the opportunity to behave as judge and jury. He may think that his constituents do not mind the local licensing authority being judge and jury. I can tell him that my constituents mind a great deal about that.

Mr Martin Linton (Battersea, Labour)

They talk of little else.

Mr Andrew Turner (Isle of Wight, Conservative)

They talked of little else in Fairlee road when the council was applying to give itself permission to hold a pop festival. My colleague, Drew Mellor, who is the councillor for that area—and of an age when one might expect him to be interested in pop festivals—was very exercised about the fact that the local authority was able to give itself permission.

Local electors do not like that, any more than they like it in respect of planning permission. It is allowed in respect of planning permission and it has been allowed since 1066 in respect of licensing provision, but that is no justification for it being perpetuated by the Bill. That is why I have tried, in my small way, to think of a better procedure.

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

Do not be modest.

Mr Andrew Turner (Isle of Wight, Conservative)

If the Minister can think of a procedure that is better still, I will be happy to withdraw my amendment, but if he cannot do so and we are not careful this will end up in a whole host of complaints, appeals, ombudsman cases and so forth, and eventually someone will wave the ghastly human rights flag, which they tend to wave when they cannot think of any other flag to wave.

Mr Kevan Jones (North Durham, Labour)

What about Europe?

Mr Andrew Turner (Isle of Wight, Conservative)

I was going to mention that.

They will wave the human rights flag and some expensive human rights lawyer will take the matter to the House of Lords, which will say, ''Sorry, there is a failure of natural justice,'' and this legislation will be overturned because of that.

Mr Mark Field (Cities of London & Westminster, Conservative)

I congratulate my hon. Friend on his ingenious attempt to find a way around this problem, which is inevitable in any licensing or planning regulation, as we have seen in the past in a range of local authorities.

It is a difficult problem. My concern with the amendment is simply about giving the Secretary of State the power to designate an authority. All Committee members are aware that there are a number of narrow stress problems with the Bill. In my local authority in the City of Westminster, I would be reluctant for licensing matters to be determined by, for example, the London borough of Enfield or the London borough of Barnet—by mentioning them, I am not making any narrow political point as both of them are now Conservative authorities. However, Westminster's problems in that regard could probably be dealt with only by, for example, the

neighbouring authority of Camden. It may well be the case that there a number of local authorities where the neighbouring authority has an entirely different regime and it would be difficult for a Secretary of State suddenly to have the power passed on in this sort of way.

We must face this difficulty: it is inevitable that there will be accusations of conflict of interest. The hon. Member for North Durham rightly pointed out that where a planning authority is also the owner of land—as is the case in every local authority throughout the country—there is a prima facie conflict of interest. We do not want to go down the route of relying on the ombudsman. We must accept that the ombudsman can be used only in extremis. An ombudsman's inquiry is often a long-winded and time-consuming process that takes years to produce results.

There is something that we must consider. All Committee members—particularly those of us who were in local government before coming to this place—know that, all too often, where there are complaints, they are more about procedure than outcome. One need only consider the massive and time-consuming inquiry into terminal 5 at Heathrow. That was a tortuous procedure. It involved appeals, public inquiries and various other forms of public consultation. Even then, at the end of the process, there were still members of the public who said that they did not feel that they had had their say. The reality was that they had; they were simply unwilling to accept the outcome.

Local authorities have to be a little more robust about the issue, particularly in their roles as licensing authorities and in a planning context. I shall give a concrete example. When I was on a local authority, planning was my main area of interest. The Kensington and Chelsea Conservative Association decided that it wanted planning consent for its property and the planning committee went through a tortuous process. It looked as though every last Conservative member of the planning committee would, as a member of the local Conservative association, be disqualified from playing any part.

Mr Kevan Jones (North Durham, Labour)

Hear, hear!

Mr Mark Field (Cities of London & Westminster, Conservative)

I hear that, but I think that everyone will understand the sheer absurdity of that situation. Clearly, if an individual is a licensee or has an obvious conflict of interest, that should be declared and that person should step off the committee. That applies to local councillors and members of local licensing authorities. The real danger with this sort of provision is that all too often what complainants desire above all is what they consider to be the right result, rather than the right process.

Mr Mark Hoban (Fareham, Conservative)

How would my hon. Friend tackle the conflict of interest that would arise if, to go back to the example given by my hon. Friend the Member for Isle of Wight, a council and a commercial promoter both sought to promote pop concerts? How would my hon. Friend do that if we left the framework as it is?

Mr Mark Field (Cities of London & Westminster, Conservative)

I accept that there is a lacuna and my hon. Friend has accurately pointed out that there would be an inevitable conflict of interest not only about the licensing, but about who should have the consent for such an event. I hope that the Minister will give some serious thought to finding a way around the problem, but the reality is that if we give the green light to the provisions as they stand, we would have to go down a litigious route that involves High Court injunctions and, potentially, human rights actions. Obviously, that would be a retrograde step. We have to accept that in some instances there will be a prima facie conflict of interest along the lines set out by my hon. Friend the Member for Isle of Wight.

I would be interested to hear feedback from the Minister on this skilful attempt to square a difficult circle on a problem that has applied to local government through the ages. The officers and Ministers of the Department for Culture, Media and Sport may prove me wrong, however, with their collective wisdom, and perhaps there will be genuine progress in the new, modernised local government of the 21st century.

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

The hon. Gentleman made an interesting contribution—as, indeed, did the hon. Member for Isle of Wight. On the human rights ''ghastly'' warning given by the hon. Member for Isle of Wight—the hon. Member for Cities of London and Westminster (Mr. Field) mentioned the issue, too—I am sorry to disappoint, but the Joint Committee on Human Rights has concluded that there are no implications, under any of the articles, arising from the arrangements that we are debating.

The hon. Member for Isle of Wight, who is a veteran of several Committees, will probably know that all legislation has to be tested against strict criteria on the human rights issue. He asked whether residents who objected to anything had a route of appeal. They can appeal to the magistrates court if they made representations on the initial application as, of course, would be expected. Also, they may be able to challenge the decision by way of judicial review, albeit with all the provisos involved, and he is right to highlight them. Judicial review can be an expensive process. The hon. Member for Cities of London and Westminster had an interesting and illuminating approach in comparing the construction of a multi-million pound international air terminal with a licensing application from the Dog and Duke—[Interruption.] My advice note states that it was the Dog and Duck. Whatever the name of the pub, it is interesting. I like Dog and Duke better, actually.

Amendments Nos. 176 and 212 would require, where the applicant or owner of the premises is the licensing authority for the area in which the premises are situated, that the Secretary of State designate another licensing authority as the relevant licensing authority. I am sure that when the hon. Member for Isle of Wight sums up on his amendments, he will give us some examples of that. I find it intriguing that Rhondda Cynon Taff council could be judged by Cardiff city council in that way. I should imagine that people would have to put on NATO uniforms for some of those sittings. The proposal is further

indication of the hon. Gentleman's strength of conviction that we should do everything that we can to avoid conflicts of interest.

On Tuesday, the hon. Gentleman cited some unfortunate incidents that took place in his constituency. As I made clear at the time, I have some sympathy with his views because we have all seen such things happen. I believe firmly that the amendments are unnecessary and would fly in the face of our drive to open up public venues, particularly where entertainment is concerned.

I am worried about some of the observations that have been made by some of the groups representing morris dancers, wassailers and others, who are not particularly interested in the sale of alcohol. Some of their dances or storytelling may take place in a licensed premises—in a car park or a garden of a pub, or whatever. Often, those activities take place on property that is owned by the local authority, such as a road or a square. It is important that local authorities should not have to go through a long process, which it could become, of handling applications of all types relating to premises that they own or control. They have dealt with public entertainment licensing for many years with few problems, as far as I can make out, notwithstanding the examples that were cited by the hon. Gentleman. A robust regulatory framework governs the conduct of councillors, which prevents the sort of conflict of interest that we have discussed a great deal.

I tried to tell the hon. Gentleman last Tuesday that the Bill is not concerned with re-engineering local government. If the rules are not strong enough—in his opinion—to deal with the problems that he described, perhaps he can make a case for the legislation using one of the many alternative routes open to him, but not necessarily the Committee. We will encourage licensing authorities to license venues that they own or administer for the purposes of making them available for public use and entertainment. That is part of our strategy to ensure that the Bill has a generally positive impact on cultural provision in England and Wales. Going through the rigmarole of getting the Secretary of State to nominate another licensing authority for such purposes would undermine that objective considerably.

I hope that the hon. Gentleman, whom I know cares about the encouragement of all sorts of cultural expression in his constituency and elsewhere, will withdraw the amendment.

Mr Andrew Turner (Isle of Wight, Conservative)

I thank the Minister for his kind words. I recognise that the Bill is not concerned with re-engineering local government. It is only coincidental that under clause 10 he was trying to re-engineer local government, but never mind. We shall move on from that.

I accept that many of the applications that will be made by licensing authorities for their own premises will be minor ones. Indeed, it is questionable whether some of those applications would be necessary. Morris dancers argue that it would be necessary. I think that the Minister argued that it would not be necessary for the licensing authority to apply to itself for a licence

for morris dancing to take place in the square in Yarmouth because it happens to own the square. If it took place in Pier square in Yarmouth, which is adjacent, an application would be necessary—there is no barrier between the square and Pier square—because Pier square is owned by the harbour commissioners of the former borough of Yarmouth.

The Minister points out that many of the applications will be minor, which I accept, but some of them would be major. A councillor would not face a conflict of interest as an individual, but as a councillor—that applies to all councillors on the licensing authority. They would face a conflict of interest about a major application because they are part of the authority that is promoting the entertainment that needs to be licensed. I do not know about a domestic problem between Cardiff and Rhondda Cynon Taff, but—

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

It is based on rugby.

Mr Andrew Turner (Isle of Wight, Conservative)

That is an excellent reason. I know that my licensing committee would be happy to license what was going on in Westminster—indeed, it would be grateful for the opportunity to visit the city of Westminster at the expense of either Isle of Wight or Westminster council tax payers.

I recognise that investing this power in the Secretary of State may be controversial and I am glad that the Minister pointed out the route of appeal, under schedule 5, of the magistrates courts and the possibility of judicial review. That will be expensive and limited to those who have made a relevant representation; I think that will also be limited to interested parties in the context of clause 14(3). As we shall later discuss clause 14(3) and have an opportunity to return to this subject on Report if the conflict needs to be dealt with further, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.