My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Blackstone.)
My Lords, in moving Amendment No. 37, I shall speak also to Amendment No. 41. Amendment No. 37 would remove the restrictions on the number of members of a licensing committee. I spoke to the amendment in Committee, and I was not satisfied with the answer that I received.
Noble Lords will know that there will be an ever-present need for speed and flexibility on the part of local authorities. In large urban areas, local authorities will be hampered from running the system efficiently by the specification that the licensing committee may have no more than 15 members. Backlogs will build up; applications will be delayed; and applicants will become frustrated. In small areas, local authorities may be hard pushed to find 10 members. In Committee, I referred to Ryedale District Council, in the parliamentary constituency of my honourable friend John Greenway. That council has 23 members. Rutland County Council, in the parliamentary constituency of my honourable friend Alan Duncan, has 20 members. The suggestion that a licensing committee may have no more than 15 members seems a little out of kilter.
The provision is a setback to the new system before it has even started. No doubt, the Minister will counter my argument as he did in Committee by talking about sub-committees and the fact that,
"In certain emergencies they"— the licensing committee—
"can even devolve work to officers in order to meet the requirements of particular exigencies".—[Official Report, 19/12/02; col. 835.]
That is a classic case of over-regulation and unnecessary complication. Why not let the local authorities decide how many members there should be on the committee? They will be able to decide on the number that best meets their needs for the amount of business that the committee will handle. The Bill is over-prescriptive.
I turn to Amendment No. 41. On the third day in Committee, the noble Lord, Lord Davies of Oldham, said that, when considering applications for licences, all members of a licensing committee would have to be present for the committee to be quorate. That was a surprising thing for the noble Lord to say. It is apparent from the Bill that it would be difficult for a licensing committee to refuse to grant a premises licence or a personal licence. One could be forgiven for thinking that the purpose of the Bill is to repeal licensing law, albeit that it takes 169 pages to do so. Be that as it may, the Bill makes it far easier to obtain either a premises licence or a personal licence.
The curious thing is that, if all members of a licensing committee must be present for the committee to be quorate—we could think of those in Ryedale, for example—it will be more difficult to obtain a licence. We all know how difficult it is to get a meeting of our colleagues together. Finding a date when all the members of any group can meet is always difficult. Even when a date is found, somebody inevitably cries off for a good or bad reason. The work of government here in Westminster and at local level would come to a grinding halt, if the requirement for a quorum for any committee was set at 100 per cent. Therefore, we resist any suggestion that a quorum should be 100 per cent.
That was the situation before Christmas. However, the noble Lord, Lord Davies of Oldham, must have had a good Christmas. He was in more charitable mood on the fourth day in Committee. He said:
"a local authority could not conceivably act in circumstances in which everybody had to be present and correct in order to form a quorum".—[Official Report, 13/1/03; col. 16.]
I like the idea that everyone has to be both present and correct. I wonder what the noble Lord means by being correct, rather than just present. The thrust of what the Minister said was that a 100 per cent quorum was unworkable. It looks as if I am pushing at an open door on that point. That being so, it is appropriate that the licensing committee itself should decide the quorum for meetings. It will be best placed to know how busy it is and where a balance should be struck.
Regulations made by central government cannot take into account the many local variations that would make a quorum figure acceptable in one area but not in another. The quorum for meetings should be decided at local level, rather than by central government. I beg to move.
My Lords, before the Minister replies, I too should like to support my noble friend Lady Buscombe. As I pointed out in Committee, one of the concerns as regards the procedure is that dealings with local authorities over public entertainment licences have not always been as swift, flexible and responsive as people would like. Adding further burdens will make the speed of response even less flexible. Thus anything that may entrammel the local authority in bureaucracy, including a fixed requirement for people to attend meetings, seems undesirable. We seek as much flexibility as possible for the local authority in order that it will be able to respond quickly to applications.
I understand the Government's wish to see a minimum level of quorum; that is perfectly fair. However, the Bill as drafted is overprescriptive and I therefore support the amendment.
My Lords, I think that the points are being rather belaboured because of a misconception. Representations made during our earlier discussions and again today suggest that the licensing committee will meet in regular session. The question of quorum would then become much more significant. Let me assure the House that while the licensing committee may wish to meet frequently and is able to do so—that is its business as defined locally—its sole obligatory function as a committee is to make the licensing statement. For that the full licensing committee will have to be present and therefore the question of numbers is significant in that context. However, it is only for that function that the entire committee needs to be in action; it may decide at the local level whether it wants to hold full meetings on other occasions.
For the rest, we envisage a flexible committee structure to meet the requirements for the granting of licences that will be responsive to local pressures, while at the same time the structure will maintain a clear perspective on the responsibilities of the licensing committee itself and on the nature of the surrounding regulations.
I understand fully the points that have been made and recognise the issue of flexibility. That is why I wish to emphasise that most licences will be granted within the framework of a sub-committee structure. The Bill attempts to balance flexibility through a framework based on a sub-committee system that will provide licensing authorities and, by extension, the industry with the tools to process applications quickly and efficiently.
As I remarked earlier in our deliberations, we have sought the views of a wide range of stakeholders, including representatives of local government at all levels, and have concluded that a limit of no fewer than 10 and no more than 50 members will ensure that a licensing committee is not so small as to make decision-making unacceptably slow and not so large as to make its conduct of business unmanageable. We are still of that view. Amendment No. 37 would allow the licensing authority absolute freedom to determine the size of its licensing committee.
It is important to remember that in the majority of cases we expect applications to be processed administratively at the official level, without any need for a hearing. Under the structure, the licensing committee will deal with the policy statement while sub-committees will deal with those applications raising significant policy issues. Officials will be able to deal with run-of-the-mill licence applications where no significant issue of policy arises. Under those circumstances there will be no need for any member of the licensing committee to be involved if the officers are given the authority to exercise decisions in their own names.
The policy behind the Bill is designed to promote co-operation and collaboration between licensees and the licensing authority. Most issues should be ironed out by the applicant through dialogue with the licensing authority and the responsible authorities, as well as through reference to the statement of licensing policy, before the application is even submitted. Where relevant representations are received and a hearing is required, members of the licensing committee will need to become involved. But I emphasise again that the whole licensing committee does not have to consider and decide on every application; indeed, for the entire licensing committee to be involved would be an unusual occurrence.
The Bill provides that functions of the licensing committee may be delegated to sub-committees comprising three members that may sit in parallel. Thus, for example, for a licensing committee comprising the maximum of 15 members, five sub-committees could sit simultaneously to consider what it is hoped would be the small fraction of applications that cannot be processed administratively at the official level. The noble Lord, Lord Brooke, will note that, coincidentally, the sub-committee system framed in the Bill reflects arrangements currently operated by Westminster Council in respect of public entertainment licences. Those arrangements work extremely well.
The licensing committee may delegate any of its functions under the Bill except responsibility for the licensing statement. That is why I have emphasised that the full committee will meet quite rarely. Nevertheless, in order to avoid large and unwieldy committees, we have stipulated a maximum of 15 members. I recognise that, in mentioning Ryedale, the noble Baroness made the important point that local authorities vary greatly in size. A committee of 10 members might constitute half of the total membership of certain small authorities. However, the fact that in the main the full committee need not meet will minimise the pressure put on members, while at the same time ensuring that an adequate pool will be maintained from which to draw a sub-committee, should one be required at short notice.
In addition, and turning to Amendment No. 41 which was also spoken to by the noble Baroness, the Bill gives the Secretary of State power to make regulations setting out, among other matters, the quorum for meetings of the licensing committee and its sub-committees. The noble Lord, Lord Redesdale, has supported these amendments and on a previous occasion expressed his concern that the Bill does not state how many members had to be present for a licensing committee to be quorate. He was right to point that out; those details do not appear on the face of the Bill. However, the Secretary of State will be able to set limits through secondary legislation. If the Secretary of State does not make such regulations, then by virtue of Clause 9(3) each licensing committee can choose to regulate its own procedure and that of its sub-committees. So if the Secretary of State does not make regulations, then the responsibility will be devolved to the licensing committee.
I should mention one further point. It will be in everyone's interests to ensure that where hearings are required, they can be dealt with in a timely fashion. As the noble Lord, Lord Hodgson of Astley Abbotts, pointed out in Committee, speed is often of the essence. The licensing authority must be in a position to respond quickly on certain occasions. By providing for a system of sub-committees to handle individual applications, and an upper limit on the size of the full licensing committee, we can ensure delivery of those key priorities.
I should also like to remind the House of the assurances I gave in Committee that fair and practical timetables for the processing of applications will be set out in regulations. Those too will be developed through continued consultation with local government, industry and other stakeholders.
I maintain therefore that the Bill strikes the right balance. It allows for up to five sub-committees to meet simultaneously if that is necessary, while limiting the maximum size of the licensing committee to one that is manageable.
My Lords, before the Minister sits down, can he confirm whether sub-committees will be able to deal with an important function of a licensing authority; that is, to review closure orders made under the terms of Clause 164? If so, will the three-member sub-committees be flexible in their composition so that the licensing committee could appoint any three members to deal with reviews of closure orders, in case those particular members happened to be present at the time?
My Lords, the noble Lord raises an important point. We are still involved in consultation in regard to guidance and the implementation of the Bill. The noble Lord's point is well made and we will take on board the representations he has made today.
My Lords, I thank the Minister for that full reply. As regards Amendment No. 37, it is interesting that this is a deregulatory Bill and that, on the one hand, the Government are keen that much of the decision-making should be devolved to local authorities, and yet, on the other hand, the Bill stipulates what should be the size of the committee. The Government say that they envisage a structure of flexibility. Much of the nuts and bolts of the proposed new legislation for licensing is contained in the guidance, which has no legal authority and could be changed overnight, and yet the size of a licensing committee is defined in very strict terms on the face of the Bill. I find that inconsistent and extraordinary.
I am entirely satisfied with the Minister's reply in regard to Amendment No. 41. On that basis, I beg leave to withdraw the amendment.
moved Amendment No. 38:
Page 4, line 44, at end insert—
"( ) In a case where an authority exercises its power under subsection (5)(b), its licensing committee must (unless the matter is urgent) consider any report of any of the authority's other committees with respect to the matter before discharging the function concerned."
On Question, amendment agreed to.
My Lords, Amendment No. 39 seeks to amend Clause 7 of the Bill, which concerns the exercise and delegation of functions of a licensing committee. It raises the issue of conflicts of interest and attempts to resolve it.
As noble Lords are aware, the Bill transfers all licensing functions to local authorities. There will be a number of occasions when licensing authorities will apply for licences for themselves and will therefore be judge and jury on their own applications. This raises an issue of transparency and public confidence which has not yet been fully addressed by the Government.
The issue was debated in Committee, where my noble friend Lord Alexander of Weedon said that,
"the courts have become ever more careful to ensure that there is not only no actual conflict of interest, but no perceived conflict of interest either".—[Official Report, 13/1/03; col. 13.]
I have read carefully what the Minister said in Committee. The main plank of his argument was that this issue is already covered in two existing statutes—the Local Government (Financial Provisions) Act and the Local Government (Miscellaneous Provisions) Act. But one Act dates from 1963 and the other from 1982. So, in one case, the legislation is more than 20 years old and, in the other, 40 years old. The Government have failed to understand the extent to which public opinion and best practice have moved on. Therefore this is an issue which deserves and needs further consideration.
Will people who are opposed to the grant of a licence by the local authority to itself believe that the local authority will hear their case properly and fairly? Equally, on the other side, will commercial providers of competitive services—be they alcohol or entertainment-related—be confident that their case will be properly weighed? It is unfair as much as wrong to put the local authority in this position.
I have scanned the guidance notes but I cannot see any reference to the issues raised in connection with a local authority considering its own applications. Indeed, paragraph 6.44 refers extensively to the difficulties of ward councillors receiving complaints from residents within their own wards. That micro example seems to apply macro to a council as a whole when considering a licence for itself.
As presently drafted, the Bill is a recipe for disappointment locally in this regard. It is not in keeping with modern practice; it is old fashioned and out of date. We should have clarity and transparency. I beg to move.
My Lords, the noble Lord has presented his case as ably as he did on the previous occasion, when I was taken somewhat by surprise because I had not anticipated that this was a particularly contentious issue.
Not all Acts of Parliament from the past are necessarily dated. If they have given good service and have not raised public concern, we will do well to rely upon the precedents they have established. I quoted the two Acts to which the noble Lord referred—the Local Government (Miscellaneous Provisions) Act 1982 and, perish the thought, one that went back 40 years, the Local Government (Financial Provisions) Act 1963—because both Acts govern the actions of local authorities when they are involved in self-licensing in regard to public entertainment.
We are not crossing a new bridge but extending the existing one. Local authorities will now be involved in licensing issues which relate to the sale of alcohol—the obvious feature of the Bill. But they have been involved in self-licensing for a considerable period of time under the existing Acts, and issues of conflicts of interest have not arisen in the way foreshadowed by the noble Lord in regard to this Bill.
We are basing our position on the reasonable precedent that local authorities know how to handle these issues. They will have to go through all the same procedures as anyone else who applies for a licence. Their applications will need to be advertised and notified to all the responsible authorities identified in the Bill; it will be open to the responsible authorities and interested parties, including local businesses, to make representations; and it will be open to anyone involved in the process, if they disagree with the decision eventually arrived at, to appeal against the licensing authority's decision to the magistrates' courts. So the local authorities are obliged to follow, at every stage, exactly the same procedures as anyone else applying for a licence.
We have designed the new licensing system with this degree of openness and transparency in mind. It was a major priority in the legislation, although not for the precise reasons alluded to by the noble Lord. I cannot conceive of circumstances in which a licensing authority's decisions might be influenced by a conflict of interests in an untoward way. I find it even harder to think of circumstances in which the public, and in particular the industry—were the decisions adverse to it—would let the authority get away with it.
Therefore, I ask the noble Lord to recognise that the Bill extends into the field of the sale of alcohol—an existing precedent in terms of local authorities acting in a way that might lead to a conflict of interest. The procedures with regard to application are open to guarantee that everyone can make appropriate representations.
I have listened carefully to the noble Lord making his point with some force for the second time. We should be happy to include in the guidance the rules governing standards and conflict of interest which already apply to local councillors. We shall reinforce that point so far as concerns local councillors. I hope that on that basis the noble Lord may feel that we have met the substance of his point and will be prepared to withdraw the amendment.
My Lords, I am grateful for that last reassurance. We move into a new world as we move to a new licensing system. Praying in aid what has gone on in the past is not as relevant as all that.
I accept the point that an appeal will be to the magistrates' court anyway. It seemed to me that it would be quicker to deal with local authority cases by going there straightaway and starting there rather than having to go round the route through the local authority first. However, I am grateful to the noble Lord for having agreed to insert some further words in the guidance. I think that that takes the matter far enough for me to be able to withdraw the amendment and beg leave to do so.
My Lords, with the leave of the House, perhaps I may introduce a correction. I made a slip of the tongue a moment ago which I want to correct for the purposes of the record. I think I said in relation to Amendments Nos. 37 and 41 that the responsibility for the licensing policy statement is that of the licensing committee. I meant the licensing authority. For the purposes of the record I want to make that clear. I apologise to the House for intruding at this juncture.
My Lords, in moving this amendment I shall speak also to Amendments Nos. 80, 94 and 114.
I said in Committee that I would return to this issue. The industry is keen for it to be included in the Bill. It also has the support of the Licensed Victuallers Association. I want to present four arguments for its inclusion.
First, an owning company will often be in a position to promote the licensing objectives through its contractual agreement with the tenant or lessee. Notification of breaches of the premises licence would allow the registered party to enforce the terms of such an agreement to the effect that the terms and conditions of the premises licence must be complied with. The registered interest would want to protect its rights in the property whose value is linked to the possession of a premises licence. This situation is particularly prevalent in the pub sector, where thousands of pubs are owned by pub companies and leased to tenants.
Secondly, the ability to register an interest will enable the owning company to meet its reversionary interest in the event of the demise of the tenant. This can be useful to both parties in the event of death or incapacity. It is also beneficial where a tenant absconds leaving the business adrift. The owning company, by virtue of its interest, can step in, appoint a personal licence holder and maintain the business quickly and efficiently.
Thirdly, the beneficiary of a superior legal interest which is currently protected is entitled, as a matter of natural justice, to seek to ensure that its interest in a property, the value of which is linked to a significant degree to the possession of the premises licence, is properly recognised.
Fourthly, the register of interest will make it much easier for companies to retain premises as going concerns, thereby protecting the jobs of those employed and, equally importantly, those employed indirectly such as musicians who are dependent on pubs and other licensed premises.
We believe that there is value in adding these amendments to the Bill. The industry is prepared to take on the further responsibility that the amendments set out. We believe that such provision would be of value to the industry but also to those who live in the vicinity of the pubs and to many tenants. I beg to move.
My Lords, I support these amendments and have added my name to them, as has my noble friend Lord Luke.
We debated this issue at length in Committee, but we were unable to persuade the Government. The noble Lord, Lord Redesdale, has set out what we believe are sensible reasons for the amendments. We have been approached repeatedly by those in the industry through the British Beer & Pub Association and believe that they have a strong case.
As the noble Lord, Lord Redesdale, said, a right to register interests already exists in Section 32 of the Licensing Act 1964. This needs to be preserved in the proposed legislation and linked into all sections where the investment of the party with the superior interest is threatened by the actions of the designated premises supervisor, the premises owner or other circumstance.
Notification of breaches of the premises licence would allow the registered party to enforce the terms of such an agreement to the effect that the terms and conditions of the premises licence must be complied with. The registered interest would want to protect its rights in a property whose value was linked to the possession of a premises licence. That is an important point, particularly in relation to the pub sector, where large breweries own and manage a large number of premises leased to tenants.
Amendment No. 80 relates to Clause 27, which provides that the licence shall lapse automatically upon receipt of the licensee's notice of surrender. At present, the interests of those owning licensed premises are protected by established case law—the decision of the High Court in Drury v Samuel Smith Old Brewery (Tadcaster) Ltd v Scunthorpe Justices (1992). It is wrong, therefore, to suggest that similar provisions are made under existing legislation. Furthermore, existing protection represents a proprietorial interest and necessary protection for property owners. If lessees who have an interest in the premises which is subsidiary to that of the lessor are able to surrender licences without the consent of the lessor, that would place at risk a key element of the property which the lessor has made available to the lessee, so depriving the lessor of that "possession" without a corresponding or equivalent public benefit. This consequently goes against Article 1 of the First Protocol to the Human Rights Act 1998.
Furthermore, the availability of a contractual remedy in such circumstances will, in practice, rarely be of comfort to the lessor.
I turn to Amendment No. 94. The requirement for the licensing authority to give such notices will, in view of the terms of the proposed subsection, be relatively infrequent and the cost of such a process can be covered entirely by the revenue generated by the initial registration of such interest. Amendment No. 114 is consequential.
My Lords, while I agree with every word that my noble friend and the noble Lord, Lord Redesdale, have said in support of the amendment, it is clear that registrable interests are a gap in the new scheme introduced by the Bill.
However, I observe that in effect the first amendment would add a new paragraph (e) to Clause 8(1) which may—I hope we are about to be told—not be necessary, because Clause 8(1)(d) states that the register should contain:
"such other information as may be prescribed".
I hope that the gap for which explanation has just been given will indeed be filled by prescribing exactly that kind of information. I hope that that is what we are about to be told.
My Lords, I add my support to the amendment of the noble Lord, Lord Redesdale. Increasingly, breweries are letting long leases of 21 years to tenants who, after four or five years of work, make the pub very profitable. The tenants then sell the remaining 16 years of the lease because of the additional value that they have created. That is increasingly part of the way in which the sector operates. Entrepreneurs come in, such as a husband-and-wife team who build up a local reputation for good food. There is nothing wrong with that—it is very desirable. But the tenants want to be free to sell because of the increasing value and the lease allows them to do so. However, if the premises are sold to someone who does not run the business as well as the person from whom it was purchased, in due course there will be conflict over the licensing objectives. The position of the owner of the underlying asset is not properly safeguarded, and I therefore support the amendment.
My Lords, the last-minute intervention of the noble Lord, Lord Hodgson of Astley Abbotts, perfectly illustrates the problem with these four amendments. The issues he raises are contractual issues between landlords and tenants. He did not even suggest that they should be issues for licensing law. They are nothing to do with the objectives but relate to the commercial viability of the businesses.
We believe that the licence holder's responsibility in respect of his licence is to the licensing authority. If there is any dispute or issue with the owner or lessor of the property, it is not an issue for licensing law. That is why it has not been included and why there is what the noble Lord, Lord Skelmersdale, calls a gap in the Bill. It is quite deliberate. The Bill improves on the current situation by ensuring that there is a clear focus on matters which properly concern the licensing regime.
The current system ties liquor licences to the individual business in a particular premises. It makes sense for those with an interest in the premises, often pub companies and breweries, to be able to register an interest. If a pub manager leaves, a new justices' licence is required. But under the Bill, which splits the personal and premises licence, any pub-operating company will be able to hold a premises licence itself and designate managers as the premises supervisor. The Bill does not require that managers must hold the premises licence.
Where pub-owning companies choose to delegate the responsibilities and duties attached to holding a premises licence to managers, they will still have access to information about authorisations, notices and applications relating to it. An owner of the premises can get the same information. The Bill provides that each licensing authority must keep a register recording all this information. It will be available for inspection by anyone, and copies can be supplied. To require licensing authorities to inform anyone with an interest—there is quite a wide range of interests—of almost any application or notice would make the system more costly, complex and time-consuming, and would damage the deregulatory benefits and savings which the Bill will bring. Notification can, and probably should, be a requirement of the contractual relationship between the operating company and the manager or the landlord and tenant. It should not be an issue for licensing law.
The Bill sets out quick and easy procedures to deal with transfers and changes of premises licence. An interim authority notice can be given following the death, insolvency or mental incapacity of a licence holder. This reinstates the licence for two months, and an application for transfer can be made in that period. Clause 46(2) sets out those people who can give an interim authority notice. Because we are concerned with the need for continuity of business, it is intended that paragraph (a), which refers to a person who has a prescribed interest in the premises, will capture pub-operating companies and owners of premises. I do not know whether that goes some way towards satisfying the noble Lord, Lord Skelmersdale.
Amendment No. 114 would replicate provision for some of those whom the Bill is already intended to cover. In the case of the death of the premises licence holder or where a licence is surrendered, if it is known who will take over a the business, a transfer can be applied for with immediate effect.
It seems unreasonable to suggest that tenants who are premises licence holders, with whom the responsibilities and duties associated with the licence would rest, should be required to seek the permission of landlords to surrender those responsibilities. Notice of surrender is recorded on the register. Under the present justices' licensing system, there is no requirement to notify a landlord of a surrender of a justices' licence.
The Bill offers protections for businesses, provides quick and simple procedures where changes are needed and requires licensing authorities to record and make available information about all authorisations and notices. Surely the Bill must be focused on matters that properly relate to licensing. It cannot be extended to cover contractual relationships between landlords and tenants.
My Lords, this is the second time we have gone over this matter. The Minister has put forward the Government's view that this should be dealt with through contractual law. We believe that on the face of the Bill there is a gap which, if filled, would help to further the licensing objectives. I believe that the difference of opinion on that will not be reconciled through debate. Therefore, I beg leave to test the opinion of the House.
My Lords, Article 8 of the European Convention on Human Rights places duties on public authorities to take measures to protect individuals from nuisance. Those obligations are currently binding on licensing authorities through statute and through duties of care in common law. Both legs of the law are subject to interpretation that gives effect to convention rights under Article 8. Statute is subject to interpretation in Section 3(1) of the Human Rights Act 1998 and the common law is subject to interpretation by the courts, which are public authorities under Section 6(1) of the Human Rights Act 1998.
However, the wording used in the Bill removes from its scope those common law duties of care, which are important tools through which the convention is given effect. It therefore excludes important aspects of the positive obligation on local authorities under Article 8 of the convention. The amendment would bring those duties of care back within the ambit of the Bill. The amendment, taken together with the amended licensing objectives, would ensure that local authorities had powers as well as duties to promote human rights, as set out in the convention. I am speaking only to Amendment No. 42. The others in the group are consequential. I beg to move.
My Lords, this group of amendments would substitute "lawful powers" for "statutory functions" in the definition that describes an environmental health officer in the subsections dealing with authorised persons and responsible authorities in Clauses 13 and 68. The amendments would supplement that change by defining legal powers as,
"any powers, duties and obligations conferred by or under any enactment or statute, or by a decision of the Court".
I do not understand what practical addition to the Bill the amendments would make. As I told the House previously, the Bill adopts the statutory definitions of individuals doing work related to the pollution of the environment or harm to human health—in other words, environmental health officers. Departing from accepted statutory definitions used in other enactments could risk confusion. To be clear, the Bill allows environmental health officers, who often have responsibilities and expertise relating to noise pollution and health and safety, to be consulted and to make representations when an application for a premises licence is made. It also brings them within the definition of an authorised person, so that they will enjoy the powers of entry and inspection described in the Bill.
I hope that the noble Lord, Lord Brooke, can accept that his amendment could cause confusion. I therefore ask him not to press it.
My Lords, in moving this amendment, I shall speak to Amendments Nos. 44 to 49 and Amendments Nos. 130 and 131. I shall speak to the subsequent ones on a group basis.
Amendments Nos. 130 and 131 are consequential on Amendments Nos. 43 and 46. The local authority has a duty under the convention to hear the representations of those whose rights may arguably be affected by its decision. The duty arises under the doctrine of proportionality that underlies the whole convention. The Bill will require the local authority to refuse to hear from those who do not fall within the definitions of interested party, even if their convention rights were affected by the decision.
Who might be affected by that decision? Article 34 of the convention defines such a person, who is called a "victim", as,
"a person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the Convention"— that is, anyone who has good grounds to claim that their rights are affected by the decision of the licensing authority and any non-governmental organisation, including a business, in the same position. That is a much broader class of person than is to be found in the definition in Clause 13. It specifically includes non-governmental organisations that are not businesses.
"a victim for the purposes of Article 34 of the Convention", to rely on their convention rights in any proceedings involving a public authority, including licensing decisions, or to bring proceedings against the authority in the courts on human rights grounds.
It is difficult to list all the rights that may be at issue in licensing, but there is sufficient case law to suggest that the following may, but not necessarily will, be engaged. Article 2 refers to safety issues, and by extension to crime and disorder; Article 3, to positive obligations to prevent inhuman treatment caused by noise, for example; and Article 6, to common law rights in nuisance and negligence. Articles 8, 10 and 14 refer to non- discrimination with respect to convention rights afforded, particularly in the case of qualified rights. Article 1 of Protocol 1 is also relevant.
Amendments Nos. 43 and 46, and the amendments consequential to them, would ensure that all those who have convention rights that may be violated by the licensing authority have the right to make representations in licensing matters. The safeguard against abuse of rights of audience lies in the right of the licensing authority to make the decision as to whether the rights are engaged, which is provided by the amendment, and in the rights to shut out frivolous and vexatious representations in other parts of the Bill.
I have tabled Amendment No. 44 because Clause 13(3) introduces unnecessary restrictions on which members of the public can object to the grant of a premises licence. Under present law, it is not necessary for a person to live in the vicinity of the premises for his objection to be considered by a local authority or the licensing justices. Any person who can show that they,
"may be affected by the use of the premises for licensable activities", should have the right to be heard. That is an elementary requirement of natural justice as well as, arguably, an entitlement under Article 6 of the convention on human rights. The amendment is designed to remove that restriction.
The removal of the restriction is particularly important considering the requirement that the Bill imposes on licensing authorities to grant in the absence of "relevant representations", whether or not the grant of the application would promote the licensing objectives or be in accordance with the authorities' licensing policy or be consistent with the Secretary of State's guidance. The right of an "ordinary person" to object to the grant of a premises licence will be especially important, given that he has no such right to object to the grant of personal licences in Clause 118 or the holding of temporary events in Part 5.
Amendments Nos. 45 and 48 make reference to a change to a "person or" body. They would allow individuals to represent people—in other words, a solicitor, a friend or a relative. Amendments Nos. 47 and 49 relate to the understanding that the Government accept that other organisations, such as schools, trade unions and hospitals, can make representations in their own right. I believed that the Bill would be amended to make that clear on Report. If that is not done, a BUPA hospital, being in "business", could make representations, for example, while an NHS hospital could not. No such amendments seem to have been tabled, so I have tabled my own as a probing amendment, to find out what the state of play is. I beg to move.
My Lords, the Bill complies with the ECHR without the amendments. The Joint Committee on Human Rights has received representations about some of these matters. It has not found any problem with the provisions as they stand.
As noble Lords know, an interested party is a local resident, a residents' association or a local business or trade group that may want to make representations on applications for premises licences or club premises certificates, or may wish to apply for a review of the licence or certificate. If we expanded those groups too far, we would add to the bureaucracy of the system, which would put a burden not only on industry but also on licensing authorities. Simplicity is something that we should value.
Having said that, one of the Government's aims in introducing the legislation is to give a real voice and influence to local people who are affected by the decisions taken. It is something that industry understands but about which it has legitimate anxieties, as the noble Lord, Lord Hodgson, is aware. Local economies need the investment and employment that the hospitality and retail businesses bring, but those businesses also need some certainties if they are to make the investments needed. We therefore need to strike a balance in the Bill.
Some of these amendments would include persons, organisations or bodies representing persons that,
"the licensing authority considers may be affected by the use", of the club or licensed premises. That is an open-ended definition that means that none of us could be completely sure today who might be given those rights. No person or organisation would know if they were legitimately entitled to make representations until a judgment had been exercised by the licensing authority after the representations had been made.
I would certainly find it extremely irritating to have considered myself entitled to make representations or seek a review of a premises licence, only to be told by the licensing authority after I had collected all the necessary evidence that I was not such a person. We need clarity in the rights we describe.
I appreciate that some noble Lords, including the noble Lord, Lord Brooke, believe that the impact of new licensed premises may fall as hard on those living near to taxi ranks or fast food outlets some distance away, where customers may go after visiting the licensed premises. I would need to know how what distance from the premises is intended by the amendment, and how anyone beyond a certain distance would be supposed to show that the problems related to one licensed premises rather than another.
If we are talking again about cumulative effects, that is a matter to be addressed holistically and broadly, as our debates have already shown. Licensing can be only one strand of a more complex approach. It is not a panacea. Other mechanisms in the Bill provide the necessary protections. We need simple and clear definitions which allow people to know where they stand and which strike the right balance.
I must make absolutely clear that a person living in the vicinity of the premises or club in question may be represented by any other person. He can ask his solicitor to do so, or a friend, his local councillor or his Member of Parliament. Nothing in the Bill prevents him nominating any personal representative to represent his views. So it is wholly unnecessary to include a person in subsection 3(b) of Clause 13.
A body is included in subsection (3)(b) to ensure that residents' associations have a voice without the need to take direct instructions from their members on every single matter. I understand the desire to include the term "organisations" to cover the eventuality that a school, church or hospital might be free to make representations. However, as I said at Committee stage, I do not believe that that is necessary. Any parent or governor living in the vicinity of the premises can make representations. Similarly, any member of the hospital staff in the vicinity can do so, too. Of course any member of a church living nearby can do so. We really do need to try to avoid over-complicating the arrangements. It is right that businesses are included because livelihoods may be affected. They should have a say in developments.
So, in striking a balance between the needs of the community for investment and employment and the need for security and peace, we have to focus on what is necessary and proportionate. I think that the definition in the Bill of interested party does that; we believe that it gives a proper voice for the community directly affected by the premises involved.
One of the Bill's merits is that it gives local residents a voice whereas in many circumstances they are currently denied one by the existing legislation. Against that background, I have to resist the amendments and ask that they not be pressed.
My Lords, I am grateful to the Minister for the comprehensive way in which she responded. I am grateful also for her indication on where she thought the amendments unnecessary as the rights are already enshrined in the legislation. I hope that I may be allowed to ask her whether I was wrong in thinking that the Government were thinking of providing extra definition, to which I alluded in the final group of amendments that I quoted, in relation to which they may table further amendments. Perhaps the Minister said that she would consider it and the Government have decided against. Perhaps I misunderstood the Government's previous intention.
The Minister knows that my particular concern is the swathe of entertainment area that stretches between Bayswater and Covent Garden, particularly in the context of Soho. When I was the Member of Parliament for that constituency, 20 times as many people worked in that constituency as in the average seat. If I shook the hand of someone on the street, I had a one in 15 chance of shaking the hand of someone who had the right to vote for me. I think that the Minister is being perhaps a little optimistic if she assumes that the organisations to which I referred would automatically have someone who was resident in the vicinity.
One has only to quote the figure of 750,000 people coming into work each day in the City of London and south Westminster to be perfectly clear that they are all coming from outside the constituency itself. The working population of the constituency is about 50,000, so 700,000 are commuters. Unless I misunderstood the Minister, none of them is eligible to make a complaint on behalf of the institution. So I can see cases in which, although the Minister is confident that someone in the organisation could make representations, organisations are "disenfranchised" under the law simply because they do not live in the vicinity. If I have misunderstood what the Minister was saying, I am entirely happy to be corrected.
My Lords, on the noble Lord's first question, if I gave the impression that we intended to make changes to the clause in terms of further definitions, I am very sorry because I do not believe that that is our intention. On the second question, it is perfectly clear under the Bill that any business can make representations. So the employers of those to whom he referred, whose hands he shakes, can make representations. However, if those people are commuters coming in who do not live in the vicinity, they obviously cannot do so as residents. I think that that is the point at issue, is it not?
My Lords, as I understood it, the Minister was explaining why businesses were in the Bill and other organisations were not—in order to keep matters simple. I understood from her reply that those other organisations would be represented by individuals who had an association with them. If she is saying that they do not need to be local residents, then I have no problem. However, if any organisation that wishes to make representations has to produce a resident in order to make it, that would seem to be a deficiency.
My Lords, any other organisation can make its representation through the responsible authorities. So they can approach the police, the environmental health officers, the fire authority and so on. There are so many routes through which people can make representations that I really do not believe that this is a problem.
My Lords, I am a bear of very little brain. The fact that I had some difficulty in being absolutely certain about the rights of people in the vicinity of premises suggests that it is just possible that others living in the vicinity of those licensed premises may have the same difficulty in being absolutely certain of their rights. However, I take the noble Baroness's word absolutely at face value—I greatly respect the manner in which she has conducted the Bill—and beg leave to withdraw the amendment.
My Lords, I apologise and ask noble Lords' indulgence for saying a brief word on Amendment No. 50, which we have already debated. The Minister, and indeed noble Lords who have been following these proceedings, will recall that Amendment No. 50 was placed in the middle of a previous group. In my innocence as a novice in your Lordships' House, I felt that it would be wrong to speak to the amendment—which embodied the Government's commitment in Committee to bring forward an amendment at Report stage—in advance of the Minister speaking to it herself. As soon as she sat down, my noble friend Lady Buscombe withdrew the lead amendment, which she had moved. It was therefore not possible to comment on government Amendment No. 50. I shall speak very briefly to it. However, as it was a central issue in Committee, I should like to have the opportunity to react to it.
The draft guidance was a big step forward in recognising that cumulative impact is a valid consideration for licensing policy statements and in the determining of licensing applications. Licensing authorities can consider if the granting of further premises licences would undermine the licensing objectives.
Cumulative impact would have to be addressed in the context of the individual merits of the application. That is the opposite of the way in which a local authority might wish to consider it; that is, the local authority might wish to consider the individual merits of a case in the context of cumulative impact.
Saturation policies are not regarded as grounds to remove existing licences. The stress area policies of a local authority such as Westminster, and the way in which they are applied, very generally conform to the view of saturation areas in the guidance, but they might require further development, refinement and justification for inclusion in the licensing policy statement.
The responsibilities of a local authority are many and varied. It is necessary that they are organised into departments and sections where the required specialist knowledge to carry out those responsibilities resides. A detailed understanding of licensing policy will not always be part of the knowledge base of officers in planning departments, environmental health departments or the council officers who are responsible for the day-to-day routine of processing licence applications.
It is a matter to which we can obviously return on a future occasion, but it would be helpful if the Bill could allow for local authorities to operate as they do at present, with an officer of a licensing authority who takes no part in processing or determining the application advising those who do perform those functions what the authority's licensing policy has to say about an application. That has operated successfully for many years and it would be helpful if it could continue to do so.
I apologise to the House for returning to the matter. I shall quite understand if the Minister does not give a detailed reply at this stage.
My Lords, I am grateful to the noble Lord for apologising for returning to the matter at this point. It would, of course, have been open to him to speak to any amendment in the group when the group was discussed. As regards the point he made, the Government believe that they have made a considerable concession both in terms of the way in which the guidance has now been drafted and in making local planning committees one of the groups that can make representations. I have no doubt that, in taking on that function, planning officers will acquire the expertise that is needed. They will also work closely with officials responsible for licensing with regard to a planning issue and questions of saturation that may need to be discussed. I am confident that the system will work perfectly well.
My Lords, Amendment No. 51, and Amendment No. 53 which is grouped with it, are important amendments if local democratic accountability is to be preserved. The Bill provides in Clause 18 that applications are to be granted in the absence of relevant representations made by an interested party or a responsible authority. The Bill requires licensing authorities to promote the licensing objectives as set out in Clause 4, and to have regard to the licensing statement and, as the Bill stands at present, any guidance issued by the Secretary of State.
It ought to be the case that a licensing authority should have the power to refuse an application for a premises licence in a case where the licensing objectives would not be promoted by a grant and/or where to grant the application would be contrary to the licensing statement or the guidance issued by the Secretary of State.
The licensing authority should therefore be entitled to take into account the licensing objectives, its policy and guidance, even where there are not relevant representations from interested parties. As the Bill was originally drafted, the licensing authority itself could make relevant representations only in its capacity as an environmental health authority under Clause 13(4)(d). Although we welcome the fact that the Government listened to representations made in Committee that the provision was far too narrow, and recognise that under government Amendment No. 50 a planning officer from a local authority will be able to make representations, we still feel that this is unnecessarily restrictive. Thus, either Amendment No. 51 or Amendment No. 53—I refer to the Minister's helpful remarks on Amendment No. 50 in this context—will enable the licensing authority to draw to its own attention, by means of making relevant representations, the impact of a grant upon the licensing objectives, its policy and central government guidance. I sought to illustrate the manner in which that might be done in my remarks on Amendment No. 50. I beg to move.
My Lords, I support Amendments Nos. 51 and 53 in the name of my noble friend Lord Brooke of Sutton Mandeville. This is an important issue. It must be right for the local authority to have a say, even where there are not relevant representations from interested parties. It would be otiose of me to repeat all that my noble friend said. However, I make it clear that we support very much Amendments Nos. 51 and 53.
My Lords, the promotion of the licensing objectives underpins the Bill. The duty on a licensing authority is to carry out its functions with a view to promoting the licensing objectives. By way of general comment on these amendments, it is difficult to see why reference is made to enhancing the duty when the duty is an absolute obligation.
Judgment of the merit of an application against the licensing objectives should be left to the experts. The experts on crime and disorder, and the protection of children from harm are the police, and so the police have a voice. The experts on public safety are the health and safety and fire authorities, and so they have a voice too. The experts on public nuisance are the local environmental health authority. It follows that they should have a voice too, and the Bill provides them with one. The experts in what it is like to live and do business in a particular area are local residents and businesses. As I have said on a number of occasions, we are providing them with a voice in the licensing regime for the first time.
What we are not doing, however, is allowing the licensing authority to make representations in its own right. One of the fundamental principles of the Bill is that applications should be granted administratively where the experts have not raised any concerns about them. Where those circumstances apply, there is no reason for the licensing authority as regulatory authority to give a second opinion to those experts, and it would be wrong to give it that opportunity. These amendments would turn that state of affairs on its head, and the Government cannot accept them. That said, we recognise the need for licensing authorities to be able to address local issues effectively, and, as noble Lords know, we have brought forward a package to do just that.
First, to give a further expert voice on the licensing objectives, particularly on issues relating to cumulative effect, we have added the local planning authority to the list of responsible authorities that the licensing authority must consult on an application. Under the Bill therefore, the relevant experts will have a voice, and the notion that the licensing authority will ever be in the position of being powerless to address a pressing local circumstance is, frankly, unrealistic.
Furthermore, we have made it clear in the guidance that a licensing authority may include in its licensing policy statement reference to the cumulative effect of licensed premises, where such an effect can be demonstrated to exist on the promotion of the licensing objectives, and the fact that this will be taken into account in determining applications. It will then be open to, for example, the police and the environmental health authority to make representations concerning cumulative effect and its impact on the licensing objectives in relation to an application.
If we accept these amendments, we drive at the very heart of the Bill, and there is no reason to do so, particularly in view of the additional measures that we have provided. We must remember that many people affected by the Bill are concerned, to say the least, by their fears—which I hope are largely unfounded—of local authority officers acting over-zealously or with scant regard for the real world. The amendment would exacerbate those concerns, and I very much hope that it will be withdrawn.
My Lords, I am grateful to the Minister for what she said. However, she did not explain precisely why, if local authorities have had such an officer fulfilling that role and therefore becoming expert in it with great effectiveness over many years, it is sensible to throw away that particular virtue. I will not go back to arguments about conservatism, but the fact remains that it is a tried and proven part of the licensing process that historically has worked well.
I shall not engage the Minister in a Socratic dialogue about the particular kind of expertise that an officer who had historically fulfilled that role would have. However, I am quite certain that Socrates, in dialogue with her, would do an admirable job in regard to whether it was sensible to dispose of the person who had that expert quality.
I have not consulted anyone else in the House before saying what I am about to say. As the resource is valuable under the existing system, is known to work well and does not seem, at least to me, to have any down side or disadvantage, it would seem sensible to test the opinion of the House.
My Lords, the scheme of these amendments is, first, to consolidate the definitions of "authorised persons", "interested parties" and "responsible authorities" into one new clause; that is done in Amendment No. 250, which replaces the existing definitions in Clauses 13 and 68. The Minister said a few minutes ago that simplicity is something that we should value. I hope that at least the concept of the amendment will be welcome to the Government.
I hope that the Minister will pay a little attention to what I am saying. Since I am quoting her, she might pay attention to me. The concept of the amendments is to consolidate the definitions into one single definition and to avoid the duplication that is currently in Clauses 13 and 68.
Secondly, the meaning of "authorised person" is extended to any officer of the local authority who is authorised by it for the purposes of the licensing objectives. That would enable the amendment to Clause 18, which ensures that an assessment by an authorised person and the consequent satisfaction of the licensing authority that the likely effect of the grant of the application would be to enhance the promotion of the licensing objectives are preconditions for the award of the premises licence. Although the noble Baroness earlier today again said that the promotion of the licensing objectives underpins the Bill, the functions of an authorised person and the responsible authority as the Bill is currently drafted are far more limited than that. We do not have a direct connection between licensing objectives and the actual mechanics of the Bill, which I seek to insert.
The amendment to Clause 51 similarly ties a review to an assessment by an authorised person showing that the licensed activities enhance the promotion of the licensing objectives. We have the promotion of the licensing objectives written into the mechanics of the Bill and the functions of the authorised person and local authority. The local authority is made the "responsible authority" where it has any statutory functions exercisable in any area in which the premises are situated, in relation to the licensing objectives and not merely in relation to a subset of the licensing objectives—that is how the Bill is currently drafted.
"Interested party" would be amended to persons and businesses in the "neighbourhood" rather than the "vicinity". That is because, so far as I am aware, there is no definition of "vicinity" anywhere in statute. The noble Baroness will correct me if I am wrong. The word "neighbourhood" is used in, for instance, the Licensing Act 1988, the Health and Social Care Act 2001, the Town and Country Planning Act 1990, the Countryside and Rights of Way Act 2000 and a large number of statutory instruments. The courts would have less difficulty interpreting the word "neighbourhood" than when dealing with the new and untried concept of "vicinity".
I have also taken the opportunity of having only one set of persons in the navigation authority supervising licensable activities and another supervising qualifying club activities, instead of the two sets of persons, as the Bill is currently drafted.
The amendments to Clause 106 eliminate the "authorised officers" of the licensing authority, and use the same "authorised persons" who are to conduct the assessments under Clause 18, as amended, to assess the likely effect of a temporary event concerned with crime and disorder. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Avebury, for setting out the structure of this group of amendments. He rightly said that the most obvious effect of the amendments would be to remove Clauses 13 and 68—that would be done by Amendments Nos. 55 and 135—and replace them, through Amendment No. 250, with the new clause after Clause 187 in Part 9 of the Bill, which deals with miscellaneous matters.
Clauses 13 and 68 set out the meaning of "authorised persons", "interested parties" and "responsible authorities" in two places deliberately. One is the premises licences part of the Bill—that is, Clause 13—and one is the club section of the Bill, or Clause 68. I refer to Parts 3 and 4 of the Bill.
It is entirely deliberate that the Bill is repetitive in that sense. It is because the Government recognise the importance of the club tradition in England and Wales and the fact that different considerations apply in respect of clubs, which are essentially private premises, that the Bill seeks to preserve the distinction between them and those using other premises. The Bill seeks to reflect the fact that clubs attract different considerations and therefore makes different provisions for them. If we were going to adopt the structure of this group of amendments, as the noble Lord, Lord Avebury, described it, we should do that far more widely than in relation to this point. We should in effect wipe out the special consideration of clubs. I wonder whether those who advised the noble Lord have thought of that.
Clubs attract different considerations and we make different provisions for them. They must meet a series of conditions to qualify for authorisation under club premises certificates. That is why they are dealt with separately in Part 4. Where possible and where appropriate, that involves the same conditions as have been applied to licensed premises and qualifying clubs. But that is not always the case, and those who are responsible for clubs have made that clear to us. We should be very sorry to lose that distinction—it would damage a significant part of the structure of the Bill.
In making the change to wipe out the distinction between premises licences and club licences, significant changes are then made in Amendment No. 250. The most significant of those was referred to by the noble Lord, Lord Avebury, who seeks to replace the term "vicinity" with the term "neighbourhood" when defining an interested party. I consider that to be misguided because I believe it could lead to an effect opposite to the one that he intends.
The term "vicinity", in an unqualified form, was chosen deliberately to ensure that those who are likely to be affected by individual applications can have a say in those applications. However, those who are simply interested in an application without having an interest in it do not have a similar right. That is not the same as the legislative examples which the noble Lord, Lord Avebury, quoted. "Vicinity" is a term that will be interpreted on a case-by-case basis. It will not exclude individuals who live a few streets away from the premises and are affected by the application from making representations. And, under certain circumstances, it could be interpreted to cover a neighbourhood or district if the case warranted that breadth of scope. It is chosen because it will allow for the circumstances of each application to be taken into account. That is what the licensing authority will do.
There is a further effect of extending the definitions of "authorised persons", as set out in Clause 13(2)(d), Clause 13(4)(d), Clause 68(2)(d) and Clause 68(4)(d). But, to some extent, that has been pre-empted by the decision of your Lordships in relation to the previous amendment, and I shall not go into that any further.
The additional amendments are concerned with right of entry. As they were not spoken to, as I understand it, by either the noble Lord, Lord Avebury, or the noble Lord, Lord Brooke, I shall, with their permission, not refer to them.
My Lords, I am disappointed. To start at the end of the noble Lord's speech, I did refer, in allusion, to the responsible officers mentioned in Clause 106, together with the responsible persons, who are dealt with elsewhere in the Bill. I did so only to say that it was useful to have one power to appoint those persons for the different functions that they have to exercise in Clause 106, as for those covered earlier in the Bill. It seems to me normal that local authorities should have the power to appoint a person who does not have a function different from that of the officer who is to deal with the duties exercisable under Clause 106.
The noble Lord believes that the term "vicinity" is more flexible than the term "neighbourhood". He says that a person who is a few streets away may still be able to make his case and have it heard. But the point about that is that he will not be sure of it. The term "vicinity" introduces an uncertainty which I am afraid may lead us into trouble. Many people who are several streets away from a premises may wish to exercise their right to object, and they will not know whether they have the right to a hearing until someone interprets the term "vicinity". They will be in the position to which the noble Baroness referred earlier of people being aggrieved because they find that they do not come within the scope of the Bill when they feel that there is every reason for their representations to be heard.
Therefore, I shall certainly consider what the noble Lord said about the preference for the term "vicinity". However, as I see it, because the term "neighbourhood" has a statutory ancestry and can be easily interpreted by the courts, people would know more readily where they stood in terms of their right to make objections.
With regard to the noble Lord's first point concerning the separate treatment of clubs and licensed premises, nothing in my amendments would affect that. I have not sought to change any of the provisions in Part 4; I have sought only to ensure that the same powers of the local authority apply to clubs as to licensed premises and that the authorised persons are defined in the same way in relation to both sets of conditions.
I believe that my amendments would greatly simplify the scheme, and they would have the effect, which I have already mentioned, of ensuring that the licensing objectives are fully incorporated into the roles of the authorised persons. However, I am sure that I shall not convince the noble Lord at this stage. Therefore, I shall take away what he said and consider whether or not, in the light of the previous amendment agreed to by the House, it may be advantageous to bring back the matter at Third Reading. In the meantime, I beg leave to withdraw the amendment.
moved Amendment No. 56:
Page 9, line 8, leave out from "individual" to end of line 9 and insert "who has been nominated as the premises supervisor by the applicant for or holder of the premises licence and who has consented to act as such"
My Lords, in moving Amendment No. 56, I shall speak also to Amendments Nos. 57, 58, 71, 73, 74, 79, 95, 104 to 113, 119, 121, 237, 241, 266, 269 and 274 to 279. I shall be brief.
First, I thank the Minister for kindly affording us a meeting in relation to this and other subjects with regard to the Bill. The issue of the designated premises supervisor is very important. We had a full discussion with the Minister and the Secretary of State. However, I am sorry to say that we were obviously still not satisfied and have therefore brought forward this large group of amendments.
In Committee, I pointed out that the designated premises supervisor had no functions or duties in the Bill. The noble Lord, Lord McIntosh of Haringey, said that the designated premises supervisor would normally be the person responsible for day-to-day management of the premises. That may or may not happen in practice but there is nothing to stop a premises licence holder from appointing someone who has nothing to do with the premises as the designated premises supervisor, provided that that person has a personal licence. Indeed, it would be open to a chain of pubs to appoint a director of the main board as the designated premises supervisor of 200 pubs, and he could not possibly have time to take any part in the management of any of those premises. The designated premises supervisor need have no connection whatever with the relevant premises.
However, under the procedure in the Bill, a vast bureaucracy is being created, built around the designated premises supervisor. A premises licence must always specify the designated premises supervisor and, if there is a change in the identity of the designated premises supervisor, an application must be made to the licensing authority for a variation of the premises licence to specify another individual as the designated premises supervisor.
That will involve expense not only by the holder of the premises licence, who must prepare the relevant application and pay the fee, but also by the licensing authority, which must consider the application and then give notice to the chief officer of police for the relevant area of the application in order to give that officer the opportunity to object to a variation of the premises licence so as to prevent the appointment of a new premises supervisor. The chief officer of police will incur some expense as well. This vast bureaucracy is being created solely for the purposes of generating hot air about someone who has no functions and no duties in the Bill.
We also question why the chief officer of police for the relevant area should have a specific right to object when there is a change of premises supervisor. What possible grounds could he rely on in support of his objection when the designated premises supervisor has no functions or duties? I appreciate that if a drug dealer is appointed as the designated premises supervisor of a pub well known for peddling drugs, the chief officer of police may well want to object, but he already has that power under Clause 50.
Under that clause a responsible authority, which includes the chief officer of police, can apply for a review of the premises licence. On such a review the licensing authority has power under Clause 51(4) to remove the designated premises supervisor. The chief officer of police already has power under this clause to object to the designated premises supervisor. I cannot see why he should have this further power and the right to be notified whenever there is a change in the identity of the designated premises supervisor.
This procedure, which must be adopted whenever there is a change in the identity of the premises supervisor, creates unnecessary bureaucracy for no useful purpose. I beg to move.
My Lords, we debated this matter at length in Committee and we have talked about it since—clearly to inadequate effect. There are different approaches that involve either the removal of the concept completely or the removal of the requirement to include and therefore to vary details in the licence itself, or which reduce the police powers to intervene. The different amendments in the group take alternative views. They could not all be adopted. Decisions would have to be taken as to which of the varied approaches could be adopted, even if we were inclined to assent to them.
For example, it is proposed that the premises licence holder would be required to notify only the licensing authority of the change, but not the police. The licence, or a part of it, would not be sent for amendment. The police would have no entitlement to object to the new premises supervisor in any circumstances.
The Government have made their position clear on the issue. The approaches mentioned in this group of amendments weaken the provisions in the Bill which are intended to promote the prevention of crime and disorder. They are done so at the request of and on agreement with the Association of Chief Police Officers. The designated premises supervisor is an important safeguard, and one that will be vital for the police and other enforcement agencies. It is not burdensome; it is not huge bureaucracy. The process involves a straightforward and transparent notification.
The alternative approach avoids the specification of the new premises supervisor in the premises licence itself. In doing so, the balance we seek between reduced bureaucracy and effective public protection slips towards the vested interests of the retail, hospitality and leisure businesses.
Under the Bill, the transfer into new premises of a new designated premises supervisor would be achieved by the simple notification to the police and application to the licensing authority when the individual arrives. It involves the submission of only part of the licence—a schedule, which is probably only one sheet of paper. It is not burdensome; it is not bureaucratic.
The noble Baroness, Lady Buscombe, argued that the designated premises supervisor has no functions under the Bill, and that he could live at one end of the country while the pub was at the other. That is true in theory, but it would be an astonishing risk for any business to take. If there was no controlling manager acceptable to the police, can it be doubted that at the first sign of trouble the police would seek a review of the licence and that the licence itself would be in jeopardy? The enforcement agencies need to have confidence in the managers of premises where alcohol is to be retailed. They need to know where to go and where the buck stops.
Under these arrangements, the amendments would deny the police the right to intervene at all and the premises licence itself would not require any details of the designated premises supervisor upon it. Therefore, even in the exceptional circumstances for which the Bill allows, the police could not raise their concerns that a particular individual at a specific premises could undermine the crime prevention objective. For example, a certain holder of a personal licence may have a record involving convictions for possession of drugs but has retained his personal licence. He arrives at a pub that has some history of drugs problems. Should not the police have a right to intervene? Would it be in the public interest to deny them that right? The amendments would.
We do not want routine interventions which would undermine the portability of the personal licence. We believe that the Bill prevents that by focusing only on exceptional circumstances. We are determined to ensure that representations are only made by the police in genuinely exceptional circumstances. The draft guidance states that if a licensing authority believes that the police are routinely making representations on un-exceptional grounds, it should raise the matter with the chief officer of police. However, we must not allow the vested interests of business to outweigh the real and proper concerns that ACPO and others in the police service have expressed.
We support the desire to minimise bureaucracy. We believe that the Bill goes as far as it possibly can in that respect. The amendments fail to recognise the key importance of the designated premises supervisor in respect of the premises licence and the efficiency and effectiveness of the proposed licensing regime. I understand the desire to avoid the need to vary the premises licence when a new individual is to be specified, but we have already made it plain that only the part of the licence which gives these personal details must be sent in.
The Bill deals with the change of the designated premises supervisor in a different way from other variations. These amendments still require the sending of a notification and I presume that some acknowledgement or receipt would have to be transmitted back. So I ask: what would be gained in terms of saving on bureaucracy, compared with the risks of crime and disorder that would flow from these amendments?
The provisions for the review of the premises licence are a powerful means of securing the promotion of the licensing objective. They are reactive provisions which are designed to deal with problems as and when they arise. We need to recognise that exceptional action should be taken when a particular personal licence holder marries up with a certain set of premises and produces a damaging mixture.
After a review, the licensing authority may take any necessary steps for the promotion of the licensing objectives. One of those steps could be the removal of the designated premises supervisor. Far from being disadvantageous to the industry, I suggest that these arrangements work in its favour. Often, problems that arise at licensed premises are likely to be associated not with the activities that take place there, but with the actions or omissions of the designated premises supervisor. We offer the option of removing the individual concerned, rather than applying potentially restrictive or burdensome conditions to the licence by suspending it or revoking it altogether. The tiny saving that would be brought about by these amendments in terms of bureaucracy is simply not worth the candle, compared with the lack of protection of the public in terms of crime and disorder. I very much hope that these amendments will not be pressed.
My Lords, I hear what the Minister has said in his full response. We have argued the case. Both sides have worked hard to try to persuade the other, without success. What the Minister said about the Association of Chief Police Officers supporting the Bill as drafted was interesting. The Association of Chief Police Officers was keen for broadcast entertainment to be regulated, but its views were ignored in that regard.
We feel strongly about the matter. We have not been convinced that the amendment would in any way weaken the provision of the Bill designed to prevent crime and disorder, because Clause 50 is alive and well to allow for a review of the premises licence. I think that it is time to test the opinion of the House.
moved Amendment No. 59:
Page 11, line 5, at end insert—
"( ) where the relevant licensable activities include the supply of alcohol, a statement that the applicant will—
(i) not require anyone employed to work at the premises to work, without their prior consent, different hours as a result of the new licensing regime implemented by this Act;
(ii) financially compensate anyone employed to work at the premises for any increase in antisocial hours worked as a result of the new licensing regime implemented by this Act; and
(iii) if requested to do so by anyone employed to work at the premises who finishes work between 11 p.m. and 6 am, pay the fare of a taxi or minicab to the person's usual home address,"
My Lords, I apologise for tabling this amendment on Report, but I could not attend when it was down for consideration in Committee. There are three main areas of concern in the employment field. The first is requiring anyone to work different hours as a result of the new licensing regime; the second is the need to financially compensate anyone employed in anti-social hours as a result of the new regime implied by the Bill; and the third is the difficulty of getting home in the middle of the night. We can all see the social and safety consequences involved; hence the proposal that there should be transport by taxi home.
This is a probing amendment in the sense that the whole territory is tied up with current employment law. It would be a useful start to have a definitive statement outlining the extant legal provisions covering the sort of questions that concern industry staff as reflected by their trading representatives. Those endeavouring to represent people in the field find it notoriously difficult to ensure that the quality stipulated in contracts of employment is observed. For example, in well-recognised national chains with very high reputations among customers, it can be quite normal to tell staff members at short notice that they must work on a Sunday or throughout Saturday night. Technically, it may be possible to make such demands under a contract of employment. But, even if it is not, only a brave man or woman would say, "I will not do it".
The reason for increasing the amount of legislation in this field—the National Minimum Wage Act, the working time regulations, health and safety regulations, and so on—is that employers exercising best practice can be, and often are, undercut by those who would otherwise fail to observe best practice. We are all producers and consumers at some time. We all recognise the legitimate requirements and interests of employers as well as employees. But the quality of contracts of employment is important to everybody, whether here in Parliament or in a car factory. Bar work is a notoriously fluid job market. Students can easily work at night, by definition. Many work in bars in London with a work permit status, which is in question.
The hospitality sector is very large. The bar, pub and hotel industry is one of the biggest sectors in the country and employs 1 million people. It is astonishing that changes in the culture and context of the employment structure towards 24-hour opening—it is already well over 20 per cent—have not been the subject of any discussion in any forum between the industry and the trade unions, or in a tripartite forum. I will be corrected if I am wrong, but I do not think that I am.
That leads me to question whether the industry is ready to agree guidelines on these matters. We often hear it argued that employers do not like regulation and would far prefer to act on a voluntary basis through a voluntary arrangement. What voluntary arrangement? There is no voluntary agreement. Where is it? When is it proposed to make one? That is the challenge. There is a coalition of the industry. We have all received correspondence from organisations ranging from the British Beer & Pub Association to the British Hospitality Association. But I do not think that there has been any tripartite meeting. Will my noble friend take on board that, given the situation with the Lords and Commons stages, there is now time to ask for a tripartite meeting to find out the legal position and whether there is a code of best practice? That would enable us to make progress in this field. I beg to move.
My Lords, I sympathise with the intentions behind my noble friend's amendment. Nobody can argue against the need to provide adequate protection for employees. That is why the range of domestic and European employment protection law has been strengthened consistently over many years.
The working time regulations set a minimum standard of employee protection that all employees must observe. Among other things, the regulations state that no worker can be forced to work more than 48 hours a week against his will. They also set standards for minimum rest breaks. The regulations represent a powerful safeguard against abuse by unscrupulous employers, but one that is balanced by flexibility. Individual employees may, if they wish, work longer hours than those stipulated.
However, nothing in current employment law requires employers to remunerate employees with different rates of pay for what we might term "anti-social" hours. People are often surprised, for example, to learn that there is no legal requirement for an increased rate of pay, or other compensation, for working on bank holidays. That position reflects the view of this and previous administrations that, subject to certain minimum standards—in our time they are embodied in the working time regulations—terms and conditions of employment are primarily a matter of contract between the employee and employer.
Employees' working hours form part of their contract of employment. Once agreed, the terms of such contracts are binding on employer and employee. Any subsequent changes must be negotiated and agreed between them. If an employer changes his employees' working hours without their consent, they can seek legal redress for breach of contract. So part of the protection sought by the noble Lord in his amendment already exists.
As the noble Lord will recognise, employers need to attract staff of the right calibre and will frame the rewards that they offer accordingly. Except for chefs, of which there is a general shortage, there are no reports that the hospitality and leisure industry has any great difficulty in recruiting staff, although retention is sometimes a problem. That is often due to the image of work in the industry being in some cases short term. Many work for a limited time in the industry. It is an image that I know various organisations—the British Hospitality Association and the British Institute of Innkeepers, to name but two—seek to address. It is certainly an unfair image. Few industries offer the same equality and duration of opportunity as the hospitality industry.
My noble friend will recognise that the Government wish to see best practice in employee protection widely disseminated. The Department of Trade and Industry has published several good practice guides. One of them, Creating a Work-Life Balance—A Good Practice Guide for the Hospitality Industry, is particularly relevant to this case. It makes clear that a positive approach to work-life balance makes good business sense for employers by producing better motivated and happier employees. It also has a role in attracting new employees to the business, improving productivity and reducing labour turnover. The guide was developed in co-operation with organisations in the sector.
There is another factor to consider. It will be recognised that many employees in the hospitality sector work shifts. Let us not forget that we envisage, at least in the early days, that any extensions of licensing hours will be relatively modest in the vast majority of cases. But any extension is unlikely to provoke employers to seek any great increase in the workload of individual employees. It is likely, however, to increase employment opportunities within the sector, which we would all welcome.
To sum up, provided basic minimum standards are in place, further protection, such as compensation for anti-social hours or taxi fares home, must be the subject of employment law and individual contracts of employment.
Although I fully appreciate what my noble friend seeks to achieve with his amendment, the basic safeguards already exist in law. The Government are encouraging best practice to raise standards further. My noble friend suggested that a tripartite meeting should take place. In the context of the Bill, I am not in a position to comment positively on that. Of course the industry realises that when the Bill becomes an Act some significant changes will be implemented that we consider are overwhelmingly for the good of the industry and for the good of the wider community. Therefore, for the industry to seek to engage its workers fully in the implications of the changes is entirely desirable. We expect that to occur. In the mean time, the Government sustain their position in favour of establishing good practice. They hope and expect that the industry will follow those guidelines.
My Lords, I thank the Minister for that disappointing reply. He acknowledged no new qualitative problems, except for a reference to new issues being created by this legislation. This is not incremental legislation; it moves us into a qualitatively different work culture. I repeat my request that my noble friend takes away the proposal that the Government convene a tripartite meeting—that is, a meeting with employers and unions—to draw up a list of the employment law matters that are affected, indicating where gaps may appear, and to rule nothing in or out of this field. The issue has not been the subject of scrutiny in this House and it should be examined during the Bill's parliamentary stages. I beg leave to withdraw the amendment.