Licensing Bill [HL]

– in the House of Lords at 6:01 pm on 24th February 2003.

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Votes in this debate

Consideration of amendments on Report resumed on Schedule 1.

[Amendments Nos. 14 to 17 not moved.]

Schedule 2 [Provision of late night refreshment]:

Photo of Lord Luke Lord Luke Conservative 6:22 pm, 24th February 2003

moved Amendment No. 18:

Page 113, line 16, at end insert—

"( ) the premises may be used for the exhibition of films by virtue of a premises licence."

Photo of Lord Luke Lord Luke Conservative

My Lords, Amendment No. 18 concerns premises being used for the exhibition of films by virtue of a premises licence. Currently, premises which hold a cinema licence are not required to register as night cafés in London or suppliers of late-night refreshments elsewhere, even where cinemas provide hot drinks or hot food, such as popcorn, after 11 p.m. Many cinemas are licensed to exhibit films after 11 p.m. They will be able, under the transitional provisions of Schedule 8, to apply in respect of their premises to be licensed for exhibition of a film based on their current licensable activities and conditions, which will then have to be replicated.

Cinemas do not currently require a night café licence. They will be required, at the same time as applying for a conversion of their current licence, to seek a variation to be licensed to serve late-night refreshments. They are currently legally carrying out this activity without a licence.

The noble Baroness, Lady Blackstone, said on 26th November last that the Bill will sweep away unnecessary red tape, yet it seems that new impositions are being introduced unnecessarily. Later in the Bill's proceedings, the noble Baroness stated:

"The point of licensing night cafés is to deal with premises where people behave in a drunk or disorderly fashion".—[Official Report, 12/12/02; col. 421.]

This does not happen in cinemas.

The draft guidance issued under Section 177 states at paragraph 6.11:

"The purpose of the legislation is to cover primarily night cafés and take away food outlets where people may gather after 11.00 pm and until 5.00 am giving rise to the possibility of disorder and disturbance".

To continue in a similar way, additional costs will be imposed on cinema operators and local authorities because it will be necessary to seek a variation during the transitional period. I beg to move.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (the Arts), Department for Culture, Media & Sport, Minister of State (Department for Culture, Media and Sport) (Arts)

My Lords, I do not have a great deal to add to what I said on this amendment in Committee. Schedule 2 defines the provision of late-night refreshment—that is, when the supply of hot food or drink between 11 p.m. and 5 a.m. will be a licensable activity. All premises where licensable activities are carried on will be required to set out in their operating schedule the steps they propose to take to promote the licensing objectives.

Amendment No. 18 would exempt the supply of hot food or hot drink from premises used for the exhibition of films under a premises licence from the definition of the provision of late-night refreshments. It is not clear why such premises should not have to set out what steps they propose to take to promote the licensing objectives in relation to the provision of late-night refreshment in exactly the same way as other premises providing late-night refreshment or as they have to in relation to showing films.

The provision of late-night refreshment from cinemas has the potential to give rise to issues of public nuisance and safety just as it has from other places. If premises already have to apply for a premises licence for the showing of films, why should they not, at the same time, apply for an authorisation to provide late-night refreshment? That is not a great burden for them. Under the Bill, unlike the existing legislation, a single licence can cover both activities. I therefore very much hope the noble Lord will feel able to withdraw his amendment.

Photo of Lord Luke Lord Luke Conservative

My Lords, I thank the Minister for that. In view of what she has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Licensing authorities]:

[Amendment No. 19 not moved.]

Photo of Lord Redesdale Lord Redesdale Liberal Democrat

moved Amendment No. 20:

Page 3, line 1, at end insert—

"( ) for purposes of personal licences, the Central Licensing Authority."

Photo of Lord Redesdale Lord Redesdale Liberal Democrat

My Lords, I shall speak to Amendments Nos. 20, 21, 192, 196, 197 and 207. The purpose of the amendments is to introduce a central licensing authority or register. We went through this proposal at some length in Committee, and I did not agree with the Government's answers. At a recent meeting, the Government helpfully suggested that what we were trying to do they would expect to be done through a central register anyway. However, the inclusion of the amendments would take some of the burden off the local authorities because although they will have to register personal licences, it would be helpful if a central licensing authority or register could be initiated. That might stop the duplication of work and take some of the expensive provision away from local authorities.

I do not think the local authorities would be giving up any powers they would want to keep because this would not prevent them from dealing with personal licences. It would also be helpful for those with personal licences who could then deal with a central authority, in the same way that DVLA deals with driving licences. Those with personal licences would not have to deal with the local authority where they originally applied.

This much more centralised and useful system would, I believe, be cheaper for local authorities to run and would be helpful for those dealing with the new personal licences. I believe that it would save a great deal of money not just in the short term but the long term. I beg to move.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport) 6:30 pm, 24th February 2003

My Lords, I support the amendments, to which my noble friend Lord Luke and I have added our names. I rarely describe a provision in a Bill as absurd, but I have no doubt that it is the right word for Clause 119. The clause deals with the determination of an application for the renewal of a personal licence. By subsection (1), the applicant must apply to the licensing authority that granted his original licence. This could be 30 or more years since the original licence was granted. The applicant may have moved hundreds of miles away. Subsection (2) provides:

"If it appears to the authority that the applicant has been convicted of any relevant offence . . . the licensing authority must give notice . . . to the chief officer of police for its area", and not the area where the applicant may live or work.

Under subsection (3), the chief officer of police of the area where the personal licence was originally granted can give an objection notice, but only if he,

"is satisfied that renewing the licence would undermine the crime prevention objective".

The chief officer of police of the area where the original personal licence was granted will have to form a view as to whether renewing the licence would undermine the crime prevention objective in an area that may be hundreds of miles away.

Furthermore, under subsection (6), if an objection notice has been given, the authority where the original licence was granted must hold a hearing to consider the objection notice. This hearing could be miles away from where the applicant lives and works and will be attended by people who may know nothing about the applicant, as that applicant may not have lived in the area for 30 or more years. That is surely absurd as well.

There is also a risk that a personal licence holder who has a criminal record that is known to the local licensing authority and the chief officer of police of the area where his licence is granted may decide to move hundreds of miles away and then apply for a new personal licence rather than renewing his original one. He could do so using an assumed name. He could do so confident that the local licensing authority and the chief officer of police of the area to which he has moved would have no idea that he had been convicted of a serious offence. In the absence of photographs and a central licensing authority, it would be difficult for the licensing authority or the chief officer of police to check that the applicant for a new licence was who he said he was. Cross-checking with every other licensing authority is not realistic.

The noble Lord, Lord Redesdale, tabled the amendment with our support. His solution is that there should be some form of central licensing authority. That seems as good a solution as any and we wholeheartedly support the amendment. It has the attraction that there will be one file—and one file alone—in a central place for every applicant. That file would not move. Whoever is responsible for the central licensing authority could then make appropriate inquiries of the chief officer of police of the area where the applicant resides and works rather than where he resided when he originally applied for a licence. It would not matter where the applicant worked or resided if his application for a licence or the renewal of a licence was always made to a central point. Whoever is responsible for the central licensing authority could then make inquiries of the relevant chief officer of police. We believe that makes some sense. We therefore support the amendment.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, the amendments are very similar to ones that were moved in Committee, when we had a useful debate. Perhaps there are some points that I failed to make during that debate and I can complete the argument from our point of view. I hope it might be possible to persuade your Lordships that the amendments are not desirable.

It is true that the White Paper originally said:

"To enable licensing authorities and the police to check readily the validity of licences and the licensee's history they will probably need to support a national database. It may be possible to include on a single national database details of personal licences, premises licences, punishments and sanctions imposed, door supervisor registrations and Home Office guidance."

However, that is not the same as setting up a new statutory body, as these amendments propose. The White Paper referred to the development of an electronic system to allow the police and licensing authorities to exchange information easily and freely. That is still our intention. It is very firmly a database and not a new statutory body.

There is nothing in the Bill to prevent the development of a central database. On the contrary, Clause 8 expressly provides that the Secretary of State can arrange for the duties conferred on licensing authorities with respect to the requirement to keep a register to be discharged by means of one or more central registers. The Government actively support the development, in due course, of a central licensing register.

However, setting up such a register would be a task of considerable practical complexity. It would have to join up the licensing functions of 410 authorities. I do not know of a single joined-up system of any significance that covers every local authority in England and Wales. That is not to say that we are not making progress. The Office of the e-Envoy has published and promoted a number of frameworks for wider integration of electronic systems in the public sector, setting standards for data storage and access. We expect local authorities to comply with that. Indeed, they would have to comply for it to be funded. However, even if the local authorities started to develop a system now, there is no guarantee that it could be up and running in less than several years—one always has to be careful with IT projects, so I shall not be more precise than that. A large proportion of the population and the industry are looking forward to the benefits that the new licensing system will provide. With the usual provisos, noble Lords opposite have expressed support for the objectives of the Bill. Setting up IT systems is not an adequate excuse for delay.

We have drafted the Bill to allow a simple system, based on effective communication between licensing authorities, which can be up and running from Royal Assent, but also to provide for a central register to be developed in due course when that is possible. I am confident that the local system will work well up to that point. The licence holder will be under a duty to notify the licensing authority of a change of address, as well as other relevant details, such as, in accordance with Clause 130, convictions of relevant or foreign offences. It will not be a case of the licensing authority having to track down the licence holder.

We expect there to be about 155,000 applications for personal licences during the transition period. That works out at an average of about 500 applications per licensing authority. Nearly all of those will be dealt with administratively, so we do not think this is too much of a burden. We expect there to be a turnover of about 6,500 personal licences every year—about 15 per local authority on average. That should be possible too. Our proposal represents no substantive change from the White Paper, on which we consulted. The only difference is that it recognises the complexities of setting up a central database and addresses them in a pragmatic way, without delaying the benefits of the reforms in the Bill.

The same arguments apply to the even grander project of setting up a central licensing authority. In addition to a central database, there would have to be premises, staff, management structures and public money spent on an unnecessary organisation. It would not solve the problem, which the noble Baroness, Lady Buscombe, addressed, of the ability of the police and the local licensing authority to keep up with licensees if they happen to move around the country.

I have listened to the scenario of people moving. Let us say that someone who was granted a personal licence in Newcastle subsequently moves to Bournemouth. Under the Bill as drafted, if he wishes to renew his personal licence, he must apply to Newcastle. I understand the concerns that the police or the licensing authority in Newcastle might lose touch with the individual over time. However, it is important to consider the clear criteria that the licensing authority would apply when determining an application for renewal.

First, when there have been no convictions for a relevant offence or a foreign offence since the licence was granted or renewed, the licence must be renewed automatically. That will be so in the overwhelming majority of cases. Under those circumstances, the licensing authority in Newcastle is just as capable as issuing the new licence as that in Bournemouth. There is no additional burden on the applicant. We often apply to agencies far removed from where we live when renewing our passport or driving licence.

When such a conviction has occurred, the chief officer of police for that area may give an objection notice to the licensing authority if he or she is satisfied that, having regard to any conviction of the applicant for a relevant offence or comparable foreign offence, renewing the licence would undermine the crime prevention objective. The licensing authority would hold a hearing to consider the objection notice. That is the point the noble Baroness, Lady Buscombe, made. I would make two comments about what she said, if she were paying attention. Instead, she is being interrupted by the noble Earl, Lord Onslow, whom I am glad to welcome to the Opposition Front Bench. I hope that he stays there, because that would restrict the range of his interventions.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, as Groucho Marx said of joining a club, I would not want to be in a club that would have me on its Front Bench.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, we do not believe that this will lead to any extra burden on the police. All the circumstances of the individual would be readily available to the police in Newcastle. The courts would be under a duty to notify the relevant authority of the details when a personal licence holder was convicted of a relevant offence in accordance with Clause 129. The Bill will make it an offence for personal licence holders not to notify relevant or foreign offences to the relevant licensing authority in accordance with Clause 130. A personal licence holder who is charged with a relevant offence must produce to the court his personal licence or, if that is not practicable, notify the court of its existence and the identity of the relevant licensing authority in accordance with Clause 126. If he fails to comply with that clause without reasonable excuse, he will be committing an offence.

As a result of these provisions, all the paperwork would already be on hand for the Newcastle police who would take broadly the same view of a conviction as those in Bournemouth. In any case, the police in Newcastle would be very accustomed to dealing with the police in many other authorities. That is what they do now, in many cases, under the "fit and proper person" arrangements.

Secondly, it is true that if the individual wishes to attend the hearing in Newcastle, he or she is likely to have to travel. However, we must maintain a sense of perspective here. In the first place, we expect very few cases to require a hearing. Of those that have to be considered in that way, only a proportion are likely to have moved any significant distance. I would not say that the concerns raised by the noble Baroness, Lady Buscombe, had no foundation, but if so, they are very marginal.

The position we have set out is sensible and pragmatic. It allows for the development of a central register without delaying the commencement of the new arrangements unnecessarily. It does not provide for a central licensing authority, largely because that would require the unnecessary creation of a new statutory body for little added value.

I know that there was scope for clarification of this kind, and I am sorry that I did not give it in full in Committee. The case has not been made for establishing a new statutory body, a new element of bureaucracy and a new possibility for things to go wrong.

Photo of Lord Borrie Lord Borrie Labour

My Lords, I wonder whether I could ask the Minister a question.

Photo of Lord Borrie Lord Borrie Labour

My Lords, the Minister may already have answered my question. Who will be the owner of the central register or registers under Clause 8? It looks as though the Secretary of State might be the owner, as the clause says that he will appoint or authorise someone to run it. As everything else is run by the local authorities, however, perhaps they collectively might be the owners.

Photo of Lord Redesdale Lord Redesdale Liberal Democrat

My Lords, I thank the Minister for his detailed reply. I do not have any difficulty with the points he raised. The system could well work in an organic way, growing as he suggested. However, in the slip he made about one simple system or one simple authority, he referred to the situation that we would prefer.

The Minister referred to the possibility of police trying to trace individuals to Newcastle. Such an individual may have made many stops in between and may have been a manager during the 10 years of the period of the licence in many different parts of the country. The noble Lord pointed out that we already accept how we contact the passport office or obtain a driving licence. Those organisations work extremely well. What we suggest would be along those lines.

The last point made by the Minister worried me most. We are creating a system that could be bureaucratic and create a paper chase. It especially concerns me that much of the work, and therefore the expense, will fall on the local authorities. In theory, that expense could be met under the licence fee. The Minister suggested that that might be an objective some time in the future, but we would like it to take place much more swiftly. He said that it might take many years to set up, but a system that involves 300,000 individuals does not need to take such a long time. The information will already be gathered, and it will be a simple case of collecting it from local authorities. If local authorities do not have that information online, I do not understand how the system can work after the transition. On that basis, I beg leave to test the opinion of the House.

On Question, Whether the said amendment (No. 20) shall be agreed to?

Their Lordships divided: Contents, 143; Not-Contents, 111.

Division number 3 Private Parking: Ports and Trading Estates — Licensing Bill [HL]

Aye: 141 Members of the House of Lords

No: 109 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Lord Redesdale Lord Redesdale Liberal Democrat 6:57 pm, 24th February 2003

moved Amendment No. 21:

After Clause 3, insert the following new clause—

"CENTRAL LICENSING AUTHORITY

(1) There shall be a body corporate to be known as the Central Licensing Authority (in this Act referred to as "the Central Authority").

(2) The functions of the Central Authority shall be—

(a) to act as the licensing authority for personal licences under Part 6 of this Act, and

(b) such other functions as may be conferred on it by an order made by the Secretary of State.

(3) The Secretary of State may by regulations make provision about the membership and staff of the Central Authority.

(4) The expenses of the Central Authority shall be paid by the Secretary of State out of money provided by Parliament.

(5) Any order or regulations made under this section shall be made by statutory instrument, and no order or regulations shall be made unless a draft of the order or regulations has been approved by a resolution of each House of Parliament."

On Question, amendment agreed to.

Clause 4 [General duties of licensing authorities]:

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

My Lords, in moving Amendment No. 22, I shall also speak to Amendment No. 23. Both amendments seek to tackle the question of "amenity". I am sure that I need not remind noble Lords of the impassioned and thorough debate we had in Committee on the impact of licensed premises on the amenities in the vicinity. There were numerous speeches on both sides of your Lordships' House from those who feared that the Bill as drafted did not sufficiently protect the interests of residents in the community. Discussion of the definition of nuisance led to much frustration. I would not like to say that the debate was fruitless, but we certainly failed to reach any firm conclusions about how to legislate on such an important area as the "quality of life" of communities.

I shall, if I may, state the practicalities of the situation. The industry fears additional regulation and "frivolous" complaints by neighbours. The neighbours fear that a noisy pub will deprive them of much-needed sleep and bring with it all the unsavoury accompaniments of beer-fuelled young people. As we agreed in Committee, given that the balance or test which must be applied is too high, it is not sufficient to allow only one of the four licensing objectives that one could cite in relation to the overall subject matter—that of public nuisance.

What is needed is a balance, which is what I am proposing in Amendment No. 23. I tabled the two amendments to make a point. The first amendment seeks to include,

"the protection of the amenity of the area", as a fifth licensing objective. It responds to what I shall call the "residents' lobby"—those who fear the effect of increased trading hours in the licensed premises in their area. Their concerns, I should add, are justified. Despite forecasts and hypotheses, the Government have no idea how the new licensing system will work in practice, as demonstrated by the fact that DEFRA has now retained consultants to discover the impact on areas surrounding pubs, clubs and other such premises. It is a leap into the dark. The protection of amenity must be a licensing objective that the licensing authority must promote while performing its functions.

The second amendment goes further and I think offers more in the way of proportionality and balance. "Amenity" is not just a word that applies to local residents; it can apply equally well to those running a licensed premises. Essentially, the amendment protects both parties in that it seeks to guide the licensing authorities to look for a balance between the best interests of both. It is all very well to propose four licensing objectives and insist that the licensing authorities have regard to them. We believe that the second amendment offers a better idea of how this policy will be implemented in practical terms when the licensing authorities come to make their crucial decision on whether to impose conditions or grant licences.

We have had a conflict of interest throughout our consideration of the Bill. My amendments seek to include in the Bill the need for the licensing authorities to make decisions that offer a compromise and a sensible balance. I beg to move.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 7:00 pm, 24th February 2003

My Lords, as the noble Baroness, Lady Buscombe, said, we had a long debate on this matter in Committee. I should like to reiterate a few crucial issues. First, this clause reverberates through the Bill. If we do not get the definition of the licensing objectives right, frankly, nothing else will be right.

Our principal objection is that the apparent protection from public nuisance is not as it would appear to a layman. That is to say, what is or is not a public nuisance as compared with a private nuisance is both highly complex in law and, as the noble Baroness, Lady Buscombe, said, constitutes a very high hurdle to jump. I have sought in vain any case of public nuisance that involves merely noise with the exception of the case of R v Shorrock in which a rave was held which brought forth 475 complaints and was heard four miles away. That is the only such case that I have come across or have read about. We are not concerned here about raves or disorderly or anti-social conduct but rather the effects of normal conduct that takes place at abnormal times of day and night. What is perfectly legitimate conduct at 10 or 11 at night becomes at three or four in the morning—particularly in a country area—a disturbance which wakes up light sleepers, the old and the vulnerable. Amendment No. 23, to which I speak, is tabled to enable licensing authorities to take account of that situation.

Unless that change is made, it will not even be open to residents in the immediate vicinity of a pub to raise complaints when a licence is being considered. As I said, the provisions of the clause reverberate throughout the Bill. One has a right of representation only in respect of one of the four licensing objectives. As I sought briefly to explain, that is a high hurdle to jump. As a matter of interest, one of the standard textbooks states:

"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance'".

Another textbook states:

"Nuisance is the least satisfactory department of the law".

To give some indication of the seriousness of public nuisance, it is a criminal and not a civil matter. There is no limit on the fine or imprisonment that can be imposed for a public order offence.

We believe strongly that it is simply inadequate to leave the Bill as it is. It will not protect people who have a reasonable point to make. It will not even trigger the extensive powers which the police have under Clause 158 to close a pub since they can do so only on the basis of a breach of one of the four licensing objectives.

On 17th December the noble Baroness, Lady Blackstone, in responding to the amendment that I moved on that occasion, said that,

"it would not be appropriate to provide a rigid meaning as to what constitutes a public nuisance".—[Official Report, 17/12/02; col. 560.]

I totally agree. That is why we want to remove the phrase. I believe that the proposed wording of Amendment No. 23 would be understood by the members of a licensing committee, not forgetting that a licensing committee is not composed of magistrates. Its members have no legal exposure, if I can put it that way.

The noble Baroness, Lady Blackstone, also said that the Government were about to introduce an anti-social behaviour Bill which would contain powerful measures to prevent anti-social behaviour. However, we do not seek to remedy anti-social behaviour but rather normal social conduct that takes place at abnormal times. The noble Baroness, Lady Blackstone, said that the Bill as drafted would improve integration in the handling of licensing matters. However, it will do that only if Amendment No. 23 is accepted.

Photo of Lord Clarke of Hampstead Lord Clarke of Hampstead Labour

My Lords, I support Amendment No. 22 and inform the House that I shall not move Amendment No. 24 which stands in my name.

We now have the benefit of the draft guidance which includes a section on cumulative impacts that is very welcome. Like other noble Lords, I am grateful to my noble friend the Minister for producing the guidance, albeit a little late. The guidance clearly states that local authorities may take the cumulative effects of a build-up of late night premises in an area into account when looking at individual licensing applications. However, the guidance is only a draft and subject to change. Furthermore, as the Government have not addressed cumulative impact on the face of the Bill, I believe that Amendment No. 22 is necessary to strengthen and support the Bill. As I say, the guidance is welcome, but it must be seen for what it is—guidance.

In Committee I said that, as this further objective was not clearly spelt out, it would be difficult for people within communities to have very much confidence in what was proposed by the Government as they set about liberalising the licensing laws. Since we discussed the matter in Committee, I have had limited consultation with representatives of local government in the North West of England, the South, various parts of London, the Midlands and with the LGA itself. There was one common response; namely, that if an objective of the liberalisation measure was to protect amenity and people living in communities, why should the Government resist putting that on the face of the Bill? People all over the country ask what is the problem with that.

I do not propose to set out in detail the various concerns that people have regarding the Bill as that was dealt with in a previous long and detailed debate, as other speakers said. The reasons for protecting the amenity of an area have been well rehearsed. When the Chamber discussed the matter previously, I asked my noble friend the Minister whether she would sympathetically consider the proposed amendments. It is clear to me—and, I am sure, to the House—that she has considered what was said. I am grateful to her for moving towards the position whereby people, local authorities and all concerned have to take into account the protection of amenity when dealing with licensing applications. This evening I ask her to take one further small step for communities who are concerned at what is being suggested and agree to place the proposed additional objective on the face of the Bill.

Photo of Lord Avebury Lord Avebury Liberal Democrat

My Lords, I agree with the noble Lord, Lord Clarke, that we should express our gratitude to the Minister for the better guidance which has now been offered, and particularly for the references in it to cumulative impact. However, I am sorry to say that the effect is spoilt entirely by a particular paragraph. Having said that local authorities are entitled to consider cumulative impact and that that might lead a licensing authority to consider whether the grant of any further premises licence or club premises certificate would undermine one of the licensing objectives, the measure states that the Bill allows for that but with the proviso that cumulative impact has to be addressed in the context of the individual merits of any application. That means that the licensing authority could not say to the applicant, "We think you're splendid people. Your management of other clubs is absolutely impeccable, but we're going to refuse this application on the grounds that there are already enough such premises in our particular district". That is a serious defect in the guidance.

I also wanted to renew my request to Ministers to say something about the DEFRA inquiry. I asked earlier and the noble Lord, Lord McIntosh, who was answering on that amendment, ignored my request. It is extremely relevant to the amendment. The note about the research being conducted stated that:

"The objective is to enable DEFRA to anticipate any likely difficulties in the control of noise by local authorities and the licensed trade that may arise from the new legislation".

If that is not relevant to the question of amenity, I cannot imagine what is.

I was a little concerned when I had a letter from the Minister only today in which she said that the DEFRA report on issues relating to the night-time economy is not produced with a view to dealing with,

"the impact of this Bill, but to produce a best practice guide for industry in relation to noise".

Which is right? Is it the note on the research issued by the company itself, or the letter from the Minister? There is a conflict between the two that I am unable to resolve. Will the Minister help me?

Will the research see the light of day before the Bill has left Parliament altogether? I asked another Minister whether we could see it on Report, which is obviously not possible now. Will another place be able to see it? Will the DEFRA research be produced some time in the summer, when it will be far too late for it to have any effect on our proceedings? It seems as though we have not got joined-up government. Both the DEFRA report on noise and the ODPM consultation on the A3 user class are highly relevant to the Bill. We have complained in the past that we did not have the guidance, and we now have that. Let us have the other two pieces of key information necessary in order that the House can evaluate the Bill.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

My Lords, I shall be extremely brief. My first observation will be in support of the noble Lord, Lord Avebury. I can recall the exchange with the noble Lord, Lord Whitty, on the subject of the DEFRA report. I can recall that the noble Lord, Lord Whitty, said that its purpose was to underpin the guidance. I can recall asking him whether, as the guidance was promised by Report, that meant that the DEFRA report would be available to us by that time as well. He said—in this sense, I acknowledge the amulet that he provided for himself—that he was not making any commitments that had not been made by Ministers on the Bill in relation to the subject. On the other hand, from the words he used it seemed as though the report would come out at the same time as the guidance. I shall not dwell on that any further.

I can recall supporting the noble Lord, Lord Clarke of Hampstead, on the previous occasion. I appreciate that I am obsessive about the West End and the stress area of Soho and Covent Garden, but I again remind the Minister in the context of the amendment that not only is the West End a great place for drinking and entertainment in licensed premises, it is the centre of theatreland for the country, let alone for London. There is no question but that people are put off coming to the theatre in the West End by what they have to step over or round if they do so. I cite that too in support of the amendments tabled by my noble friend and the noble Lord, Lord Phillips.

Photo of Baroness Blackstone Baroness Blackstone Minister of State (the Arts), Department for Culture, Media & Sport, Minister of State (Department for Culture, Media and Sport) (Arts) 7:15 pm, 24th February 2003

My Lords, I genuinely want to be helpful in replying to this short debate, so I will speak at some length. I will repeat some of what was said in Committee, but it bears repeating.

Each of the amendments has a slightly different effect. The intention that lies behind them is for licensing authorities to be able to take into account the effect of a number of licensed premises on the amenity of a particular area.

I shall deal with the amendments' specific effects for a moment. Amendments Nos. 22 and 24 both seek to add a fifth licensing objective, which is the protection of the amenity of the area in the case of Amendment No. 22, and the protection of residential amenity in the case of Amendment No. 24. My noble friend Lord Clarke has kindly said that he will not press Amendment No. 24 and wishes to support Amendment No. 22. Amendment No. 23 seeks to remove the prevention of public nuisance as a licensing objective and replace it with a balancing exercise, to be performed by the licensing authority, between the amenity of the area on the one hand and the leisure benefits to be derived from the premises on the other.

In our view, it is not the accumulation of licensed premises in and of itself that causes the concern that has led to the amendments, but the consequences that can sometimes flow in practice from that accumulation. The licensing objectives address the ways in which experience has shown that problems can arise from the co-existence in one area of a number of licensed premises. Of particular relevance in the matter are the licensing objectives of the prevention of crime and disorder and the prevention of public nuisance. The choice of licensing objectives derives from experience in current licensing decision-making. They represent the reference against which the licensing authority will balance competing specific interests to reach a decision in relation to an application that is in the overall public interest.

The Government are committed to ensuring that licensing authorities have the powers to address both crime and disorder and public nuisance arising from the carrying on of licensable activities. We have consulted widely with interested parties including, most recently, the Local Government Association and the London boroughs of Westminster and Camden to determine whether the powers in the Bill are sufficient for those purposes. In Committee, I indicated that if appropriate we intended to table an amendment on Report to ensure that any shortcomings were addressed.

As a result of the consultations that we have undertaken, our policy has developed. We have tabled amendments to Clauses 7 and 13, and I will return to those later. Further, in the draft guidance that we have made available to the House, we have incorporated clear statements on the way in which a licensing authority's policy may be developed where the cumulative effect of licensed premises in an area impacts on the objectives. Again, I will return to that when we reach the appropriate point.

First, let me say a little about how the Bill already allows licensing authorities to take into account the cumulative effect of licensing on the amenity of an area. As I stated earlier, the licensing objectives, particularly the prevention of public nuisance and the prevention of crime and disorder, are directed at the problems that can arise in practice from the accumulation of licensed premises in an area. Taking public nuisance as an example, the noble Baroness, Lady Buscombe, drew our attention in Committee to what case law had to say on the matter, namely that,

"any nuisance is public which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects".

I have not read all the legal textbooks that the noble Lord, Lord Phillips of Sudbury, has read on the subject. However, I understand that the expression "public nuisance" has been chosen in the Bill as it is well known, flexible and capable of application in a huge range of circumstances. There is developed case law on the matter, and case law will continue to develop in relation to the provisions of the Bill.

Perhaps it has occurred to the noble Lord that one reason why few cases deal with noise nuisance from clubs and pubs is that licensing controls are, on the whole, effective. The current law allows the licensing authorities to impose conditions relating to disturbance and noise nuisance; they do so and they enforce them. There is no reason necessarily to go to the courts because licences can also be revoked, and they sometimes are. Under the Bill, a review could lead to exactly the same result.

It would not be desirable to set in stone in the Bill what will constitute a public nuisance, partly because it is not possible to cover every eventuality, and partly because what constitutes a public nuisance will vary from place to place and neighbourhood to neighbourhood. The licensing authority, informed by the experts, needs to be in a position to determine what constitutes public nuisance in each individual case. In certain circumstances it may well be that some lower-level nuisance—such as the slamming of car doors by patrons leaving the premises late at night—has to be taken into account. I say to the noble Lord, Lord Phillips of Sudbury, that public nuisance is not just about acid-house parties or raves, as was argued in Committee and as he repeated tonight, although it might include those types of nuisance. However, it includes many others as well.

The Bill allows for that necessary flexible approach. As was stated in the guidance that we have made available to the House,

"the 2003 Act requires licensing authorities and responsible authorities to make objective judgements about what constitutes nuisance and what is needed, in terms of conditions attached to premises licences and club premises certificates to prevent it. These will not be easy judgements"— my noble friend Lord McIntosh made this point earlier—

"as one man's enjoyable music is another man's irritating noise. It is therefore important that in applying the relevant objective tests, licensing authorities and responsible authorities focus on impacts of the licensable activities at the relevant premises on people living, working and sleeping in the vicinity that are unreasonable".

I hope that noble Lords will recognise that that is a considerable improvement on, and development of, the original framework guidance, and a helpful clarification of the Explanatory Notes.

The noble Lord, Lord Avebury, and the noble Baroness, Lady Buscombe, asked about the DEFRA research. I believe that the letter that I sent to the noble Lord, Lord Avebury, is correct. That research is not about the impact of the Bill; it is about the adequacy of existing noise legislation. It involves general research that examines the impact of noise from pubs and clubs. I hope that that clarifies the point.

Similarly, the ODPM's considerations on the A3 class in the planning context have taken into account issues involving the Bill. We have a joined-up approach with both departments that are considering these questions.

I assure the noble Lord, Lord Avebury, that the licensing authorities will have the power to decline a new licence of a particular type when a cumulative effect relating to that type of premises is shown to exist. It does not allow the licensing authorities to reject applications out of hand without proper consideration. I am sure that that is what noble Lords want.

I firmly believe that our approach will give licensing authorities the ability to address the concerns that lie behind the amendments while retaining the concept of balance expressed in Amendment No. 23. There will be no need for residents to suffer "night after night", as my noble friend Lord Clarke of Hampstead suggested in Committee; they will be able to ask for a review of the licence relating to the offending premises. Nor will the noble Lord, Lord Phillips, have to resort to appearing at his local in his pyjamas to get himself heard—where premises are giving rise to the sorts of discomfort that are defined in the licensing statement, he will be able to call for a review. I am sure that he would do so pretty quickly if he were unhappy about a particular premises. The powers that a licensing authority has following a review are considerable.

What the Bill is not designed to address, however, is the behaviour of patrons after they have left the vicinity of the premises. I repeat what I said in Committee: it would be neither practical nor reasonable to expect the Bill to do so. It is pretty easy to see how a licensee might encourage sensible, decent and respectful behaviour as individuals are leaving his or her premises, even when they are getting into their cars and driving away. However, that influence becomes quickly attenuated. It is at that point that the onus for good conduct should fall squarely on the individual, and it is on the individual that enforcement efforts should be focused.

The licensee can and should demand good behaviour from customers while they are on or in the vicinity of the premises. He or she can encourage and request his or her customers to behave when they are beyond the scope of such demands—when they are on the way home or going to another venue. However, he or she cannot exert absolute control over individuals when they have left the vicinity of the premises and are, for example, several hundred yards away. That is why the Government are equipping the police with additional tools to control anti-social behaviour.

I should refer in this regard also to the amendments that we have tabled on the issue of the cumulative effect. The amendments add the local planning authority to the list of responsible authorities identified in Clause 13 which would be required to be notified of, and have the opportunity to make representations on, all licence applications. That will provide an additional voice in the area of public nuisance, particularly that arising from any cumulative effect that might exist. The amendments also require the licensing committee under Clause 7—we shall come to this later, but it is appropriate to mention it in this context—to consult other committees of the local authority when making decisions in respect of matters that concern not only the licensing functions but other functions of the authority. That will provide further opportunities for consideration of the cumulative effect of a licensing decision. That is, of course, underpinned by the statements made in the guidance, which now makes it clear that where a licensing authority can demonstrate that a cumulative effect exists in its area which impacts on its duty to carry out its licensing functions, the licensing authority can frame its licensing statement accordingly.

In summary—I am sorry to have taken some time, but I thought that doing so would be helpful—I understand the concerns that lie behind the amendments. However, I believe that they are unnecessary because the Bill already allows licensing authorities to deal with the practical problems that can flow from a growth in the number of licensed premises in an area. In the light of what I have said about the existing powers in the Bill and the steps we have taken to make clear its adaptability to local circumstances, I hope that the amendment will be withdrawn.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

My Lords, I thank the Minister for her full response. I am sure that I speak for all noble Lords when I say that she genuinely wants to be helpful in this regard and in relation to a number of issues that we have confronted on Report. I am also genuinely grateful to her for ensuring that we had sight of the guidance in good time before Report. That was helpful to all of us. The guidance, however, is only guidance and, with regard to the licensing objectives and the question of amenity, we believe that it is insufficient.

We are grateful to the noble Lord, Lord Clarke of Hampstead, for his support for Amendment No. 22 and his appreciation of our view, which we hold very strongly, that it is important that we have an objective that addresses the protection of those living in the area surrounding a premises. As I said earlier, Amendment No. 23 is even better because it holds out a proper balance—a fair balance—between those who want to enjoy the premises and what those premises provide, and those who wish to have, as I said in Committee, the right to live as a community in peace.

We are asking to have in the Bill a licensing objective that gives clarity to local authorities when they make those very important decisions about their local communities. We do not feel that the Government have met that need. We believe that they support all that we have been trying to do. I am afraid that the Government have not gone far enough despite their helpful references, for example, to the cumulative effect in the guidance. For the moment, I beg leave to withdraw Amendment No. 22.

Amendment, by leave, withdrawn.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

moved Amendment No. 23:

Page 3, line 11, leave out paragraph (c) and insert—

"(c) the prevention of unreasonable diminution of the living and working amenity and environment of interested parties in the vicinity of the premises balancing those matters against the benefits to be derived from the leisure amenity of such premises;"

On Question, Whether the said amendment (No. 23) shall be agreed to?

Their Lordships divided: Contents, 135; Not-Contents, 99.

Division number 4 Private Parking: Ports and Trading Estates — Licensing Bill [HL]

Aye: 133 Members of the House of Lords

No: 97 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Lord Davies of Oldham Lord Davies of Oldham Government Whip, Lords in Waiting (Whips)

My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that that the Report stage begin again not before 8.41 p.m.

Moved accordingly, and, on Question, Motion agreed to.