I remind the Committee that with this we are discussing the following amendments: No. 130, in page 10, line 8, leave out ``reasonably believes that'' and insert ``has evidence that''.
No. 81, in page 10, line 9, leave out ``is likely to'' and insert—
``are reasonable grounds to believe that there will''.
No. 131, in page 10, line 9, leave out ``, or in the vicinity of,''.
No. 34A, in page 10, line 9, after ``or'', insert—
``in a place for which the licensee is responsible which is''.
No. 36, in page 10, line 9, after ``the'', insert ``immediate''.
No. 82, in page 10, line 9, at end, insert ``and related to''.
No. 37, in page 10, line 10, leave out
``is necessary in the interests of''
``will significantly assist in securing''.
No. 132, in page 10, line 12, leave out ``,or in the vicinity of''.
No. 35, in page 10, line 12, after ``or'', insert—
``in a place for which the licensee is responsible which is''.
No. 76, in page 10, line 12, after first ``the'', insert ``immediate''.
No. 83, in page 10, line 12, after ``of'', insert ``and related to''.
No. 38, in page 10, line 13, leave out
``is necessary in the interests of''
``will significantly assist in securing''.
No. 84, in page 10, line 15, after ``(c)'', insert—
``having made a request to the holder of the licence to act reasonably by reducing or ceasing the emission of noise from the premises''.
No. 133, in page 10, line 18, at end insert—
``following at least one request from a uniformed police officer to the person ostensibly having control of the premises to end the disturbance.''.
No. 39, in page 10, line 18, at end insert—
``(1A) A closure order may only be made on the grounds specified in subsection (1)(c) if the senior police officer has given notice to the licensee that he intends to make the order, and the licensee has failed to take appropriate action to quell the disturbance.''.
No. 77, in page 12, line 26, after second ``or'', insert—
``in a place for which the licensee is responsible which is''.
No. 92, in page 12, line 30, after ``Act,'', insert—
``a request having been made to the holder of the licence to act reasonably by reducing or ceasing the emission of noise from the premises''.
First, Mr. Gale, I express my appreciation to you for your flexibility on the timing of the meeting of the Programming Sub-Committee.
During my previous comments in responding to the debate, I set out some of the general circumstances around the matter. I shall not repeat any of that, but discuss the amendments in order.
Amendment No. 4 would require the senior police officer to warn a licensee twice about his conduct of the premises before being able to make a closure order on the grounds of disorder or excessive noise. I understand the motivation behind that. As I said earlier, all the amendments have substance and were tabled properly, correctly and helpfully. However, this is a matter for guidance and for police practice, not primary legislation. The police officer present has to make his or her judgment on the basis of the circumstances that he or she sees. In almost all imaginable circumstances, it is likely that warnings will be issued more than once or twice, because that is how the police operate. They must, through the guidance that we discuss with them, arrive at the right way of dealing with the matter. An overly legalistic approach could lead to doubts about whether the police could act effectively and as the Bill intends. I hope that the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) will consider asking leave to withdraw the amendment. I understand the force of his argument and the practice that he described, but what he proposes should be in the guidance, and part of police practice, rather than in primary legislation.
Should it be a matter for regulation by statutory instrument rather than guidance? I understand that the Minister is saying that their significance is gradated, but at least to the extent that there should be a prior warning, the procedure in question would more properly be covered in regulation, which has much clearer force in statute than guidance.
I am prepared to consider that. Earlier, I talked about the hierarchy of legislation; it is a matter of judgment where the guidance sits in that hierarchy, but it is certainly important. I assure the hon. Gentleman that I shall have a good look at the matter to see whether regulation, rather than guidance, would be more appropriate.
Amendment No. 130 would require the senior police to have evidence of disorder as outlined in the clause. It would create objective, rather than subjective, tests, and therefore represents a higher threshold of police action. I am concerned about the proposal, not because I do not understand the points that were well made by the hon. Member for Reigate (Mr. Blunt)—in general, I agree that the threshold for action should be higher rather than lower—but because an objective test is difficult to achieve, especially in view of the extent of the sanction available: closure for up to 24 hours in normal circumstances. For those reasons, I urge my hon. Friends not to support amendment No. 130. Having to establish an objective rather than a subjective test makes it more difficult to assess a situation.
Amendments Nos. 131 and 132 would prevent the police from making a closure order if the disorder, or the likely disorder, occurred or was expected to occur in the vicinity of the licensed premises—that is, outside the premises. That would be a mistake, as disorder inside a premises can turn into disorder outside.
Amendment No. 81 would require the senior police officer to have reasonable grounds to believe that there will be disorder on or in the vicinity of the premises and that the closure of the premises is necessary in the interests of public safety. The amendment is not well worded; it attempts to create an objective, rather than a subjective test. It fails to achieve its purpose by creating a mixed test involving objective and subjective elements, which will be confusing for the police and the courts.
The Minister has just made my argument for me. He referred to situations in which disorder inside a pub spills over into disorder outside a pub. The licensee is responsible for what goes on inside the licensed premises; he cannot be responsible for what is happening outside. That is why the words ``in the vicinity of'' should be removed. The Minister is trying to find circumstances in which there is no disorder in the pub but that lead to disorder outside the pub. He described circumstances in which both are happening, in which case the police would have every reason to act under the powers given in the Bill.
With respect, the hon. Gentleman's implication is not quite right. The measures are not designed to punish a licensee for behaviour that is less than adequate in any respect. Issues of that type exist, but they are not covered by these provisions. The clause deals with whether it is necessary, in the view of the police, in a particular circumstance, to close an establishment because it is a cause of disorder, excessive noise or other reason specified in proposed new section 179A of the Licensing Act 1964. It is not intended to be a punishment for the licensee.
I acknowledge that there is an element of punishment for the licensee. If the pub is closed for a particular period—from 10 pm to midnight, say—there may be a loss of revenue, the costs to which the hon. Gentleman referred, a loss of reputation and so on. That could be tested by magistrates soon after the police officer has made that judgment, according to the procedures set out. The principal purpose is not to punish the licensee but to deal with the source of disorder. Disorder, inside or outside the premises, may or may not be due to the conduct of the licensee in any given circumstances.
The simple point is that if disorder is taking place outside the pub, the police have the powers to deal with it because it is disorder. The Bill gives the police wide powers to close down establishments because of activities that, being outside the premises, can never be the responsibility of the licensee.
With respect to the hon. Gentleman, although I understand his point, I do not accept it. The fact that disorder is occurring outside the pub does not mean that what is going on inside the pub has no impact on what is happening on the street. He is right to say that the police have powers to deal with circumstances of disorder on the street. They already have those powers, irrespective of the Bill. However, all hon. Members are familiar with circumstances in which what is happening on the street is not independent of the fact that the pub happens to be nearby. If one imagines the pub suddenly being taken away, will there still be disorder on the street in those circumstances? The answer would generally be no. I can imagine that the answer could be yes, but we are discussing circumstances in which the pub is the cause of disorder in the particular area. Before the hon. Gentleman intervenes again on this point, I emphasise yet again that the purpose of the closure power is to deal with the source of the disorder, not to punish the licensee.
In practice, the police operate under the precautionary principle. If there is an area of disorder within a police division, the police will have the authority under the Bill to issue closure notices for all pubs within the vicinity of that disorder. It is more than likely that, whether or not the disorder is related to one premises, the police officer will say, ``Shut the lot of them.'' That is what happened at Twickenham, which simply meant that all the people going to international rugby were displaced to premises outside Twickenham. The police cannot necessarily be expected to get it right, and they will operate on principles such as the precautionary principle. They will operate much more widely than the Minister intends, unless the phrase ``in the vicinity of'' is removed or a qualification introduced.
I will make a further point in a moment about ``in the vicinity of'' in relation to amendments Nos. 34A, 35, 36, 76 and 77. I return to my fundamental point that the closure power can be exercised only if closure is in the interests of public safety. It is clear that closure has implications for the licensee, but it is not designed to penalise a licensee for, say, running his or her establishment incompetently. It is intended to deal with the existing problem of the risk to public safety, which in the police's judgment needs to be addressed.
I am prompted to intervene by the intervention of my hon. Friend the Member for Reigate, who rightly cited the example of the Rugby Football Union headquarters and stadium at Twickenham. He may not know that our hon. Friend the Member for Ryedale (Mr. Greenway) and I, as Opposition Front Bench spokesmen, have taken up this matter with the Commissioner of Police of the Metropolis. The Assistant Commissioner, Ian Johnston, has given a detailed response, and although I cannot discuss it in a brief intervention, there is no doubt that the police are operating on the precautionary principle. I can foresee what will happen, and the point that my hon. Friend the Member for Reigate makes in respect of Twickenham will apply to towns such as Guildford and Reigate.
I emphasise again that, if enacted, the Bill will empower the police to close an establishment for up to 24 hours. The matter would then go before magistrates, who would make their judgment. If it transpired that the police took inappropriately broad action for reasons that the hon. Gentleman implied, I believe that magistrates would react in the way that I have suggested.
I very much share the viewpoint of the hon. Member for Reigate. In many places in my constituency—I am sure that the same is true of the Minister's—several pubs are located near to one another. The usual route from one pub to, say, the minicab office therefore involves passing other pubs that are very different. For example, where one pub might exercise strict door control, another might impose a fee for late-night drinking. Although in management terms it would be much easier to close all pubs in the vicinity when there is trouble, the benefit of doing so would be outweighed by the consequent risk that a pub with a faultless track record would become associated with closure. My concern is therefore a practical one.
I understand that the hon. Gentlemen's concern is practical, but I do not accept the underlying premise, based on the example of Twickenham, to which the hon. Members for Reigate and for Surrey Heath referred. According to it, the police are likely to deal with disorder by imposing a blanket order, thereby wiping out half a dozen pubs in the vicinity. I can see that that is possible in theory, but I do not accept that it is a practical likelihood or reality, because a police officer will have to make a judgment about what is going on in each set of licensed premises. Under the clause, a police officer must assess whether
``there is likely to be disorder on, or in the vicinity of, the premises''.
Such judgments will therefore be made on the basis of events in and around the premises. Three members of the Committee are now advancing the fundamental premise that the police are likely to exercise a blanket use of these powers in a given locality, but I do not accept that.
Mr. Hawkins rose—
I do not want to appear to suppress debate, but before giving way I should re-emphasise that the powers are limited to closing a pub for up to 24 hours in a given circumstance. Such a decision will then be subject to the judgment of magistrates and the procedure as set out in the clause. Were the police to use the powers in the manner implied—and I do not accept that they would—I believe that magistrates, who are familiar with licensing issues, would judge their actions accordingly and that behaviour would change if necessary. The problem as described simply does not exist.
Events at Twickenham are an example under existing law of what we are afraid of. The police have accepted in writing and openly that there has never been disorder after a rugby union international. However, precisely because they were operating the precautionary principle, a new officer decided that there might be a risk and that all the bars should be closed after every rugby union international. It was only after huge cross-party pressure from hon. Members who are interested in rugby, including the hon. Member for Loughborough (Mr. Reed) and other Labour Members, my hon. Friend the Member for Ryedale, myself and other Opposition Members that the Metropolitan police reluctantly agreed to a two-match pilot to reopen the bars. We are worried about what is happening under existing law.
With respect to the hon. Gentleman, that adds nothing to his previous intervention and I have nothing further to add. As he said, what is happening now at Twickenham is happening under current law with the current powers of the police. We are discussing disorder when
``A senior police officer may make a closure order in relation to relevant licensed premises if he reasonably believes that'' any of the specified problems might arise. I simply do not accept the hon. Gentleman's premise.
I turn to the words ``in the vicinity''. Amendments Nos. 34A, 35, 36, 76 and 77 would allow a closure order to be made only if disorder or the threat of disorder occurred on property for which the licence holder was responsible. That is similar to the matters raised on amendments Nos. 131 and 132 and it would be difficult to justify making such an order if disorder or the threat of it was taking place in the street outside the boundary of the licensed premises. Closure orders could be justified only when the place or likely place of the disorder was under the licensee's control.
The amendments would significantly water down the effect of the provisions. I understand the reasons for that and that it is not meant in a general spirit of weakening the process, but that would be the effect. Under current law, when a fight between drunken customers spills out on to the street, the police could make a closure order if they reasonably believed that closure was necessary in the interests of public safety. Similarly, if, after the disorder was quelled, further fighting was likely to break out in the street outside at closing time, the police could close the pub and disperse the crowd. The amendments would allow the licensee to argue that he had no control over the behaviour of customers once outside the curtilage of his premises, which is the argument made by the hon. Member for Reigate. However, the fight or likely fight would result from the sale of alcohol in the pub leading to drunkenness and disorder.
In a moment.
This is also the area in which the word ``immediate'' in the notes and the legislation was discussed. I am advised that no legal effect is implied by inserting ``immediate'' into the legislation, but we believe that it is necessary not to restrict unduly the area in which disorder can provoke a closure order. The word ``immediate'' would make it harder to act when disorder occurred outside and would lead to disputes in court.
I am also advised that because the notes were written in layman's terms--that is the benefit of the notes in contrast to the legislation--``in the vicinity of'' would generally be interpreted by the courts as meaning the immediate vicinity. I acknowledge that there could be confusion, which is undesirable, so I shall consider the use of the word ``immediate'' because I do not want any confusion in the legislation. I am not accepting that such an amendment should be made, but I accept that confusion is possible and I am prepared to consider whether clearer wording is necessary. However, the fundamental point is what is happening outside the pub. I do not accept that the sort of circumstance described by hon. Members is likely. A more likely circumstance is of people spilling out of pubs and fights taking place, and it would be unfortunate if the police had no powers to deal with that.
The Minister cannot have it both ways. He said earlier that he was not implying any criticism of the landlord or staff when the events took place outside, but he now seems to be saying that they are related to the fact that the pub is open and serving alcohol. He must decide whether he is saying, ``Landlords control the situation so it is right to make an order outside'' or, ``Landlords do not control the situation outside so they cannot be criticised. Therefore, this public order measure is unconnected to them.''
I return to the point that I made to the hon. Member for Reigate. The legislation is not about punishing a particular licensee for the way in which they conduct their premises; there are processes in licensing legislation to move that forward. We are discussing emergency situations where the police decide on public safety grounds that action must be taken. In considering that power, the hon. Member for North-East Hertfordshire (Mr. Heald) is right to say that there is an implication for the licensee. I argue—and this is the Government's position—that there can be and often is a relationship between events inside a particular pub and circumstances outside it. We should not seek to restrict police powers when those situations arise.
The hon. Gentleman argues that if, for whatever reason, the situation is clearly outside the responsibility of the licensee, as it would be if customers leave the pub, pay their bills, go outside and are about to go elsewhere when they get into a drunken fight, or even if events are further outside the licensee's control—such as if events taking place elsewhere spill over towards his or her pub—unless the licensee is specifically responsible for events by his or her conduct, the police should have no powers in that area. However, I do not accept that. We are not discussing punishing the licensee, but we are discussing dealing with possible sources of disorder, so it is right to have the emergency power in the way that has been described.
I did not say that such disorder would be unrelated to the premises. There is a spectrum from events taking place in a pub to events taking place 100 miles away; the question is where one draws the line. I say that where events take place in the vicinity of the pub, even if they are not on the licensee's premises, there is often a case that events in the vicinity of a pub are related to the pub itself. I acknowledge that there could be circumstances in the vicinity of the pub that have nothing to do with the licensee's premises, in which case he or she could not be criticised.
However, we say that where events take place around a pub, to go into the rights and wrongs of what is happening, which is something that the police must do on the spot, is a process that will waste time. Considering the extent to which a pub relates to events would be contrary to the purpose of the Bill, which is to deal directly with the source of disorder.
I shall discuss amendments Nos. 82 and 83, which relate to that point. The hon. Member for North-East Hertfordshire said that these amendments were especially important to the Opposition. They are intended to provide that a closure order could be made only if disorder or the threat of disorder relates to events in the relevant licensed premises. That would mean that if disorder were caused by outside events—for example, if gangs fighting in the street continued their battle after entering the premises—the closure power could not be used.
We do not consider it appropriate that this power should be used only in cases where the cause or threat of disorder emanates from the relevant premises. First, the police must act if there is a situation with a public safety issue. Secondly, the process of proving the connection would make it more difficult for the police to act. Thirdly, we do not seek to punish the licensee; we simply seek to deal with the question of disorder. Fourthly, there is a rapid remedy available to the licensee—namely, that a magistrate must hear the situation shortly thereafter.
That series of defences deals with the hon. Gentleman's point, which he made for the legitimate reason that he is concerned that there may be some overweening power where licensees are penalised for events that are outside their control. He is seeking to ensure that that power is not included in the Bill. I understand his motivation—it is based on a perfectly respectable argument, which has been solidly presented by the industry. However, the other side of the coin is that if the measure is introduced in the way that he suggests, it would effectively exclude the relationship that often obtains between what is going on inside the licensed premises and what is going on outside, to the detriment of public order.
I have said what I wanted to say about this group of amendments. Does the hon. Gentleman wish to intervene before I continue?
Yes, I do. The power completely exempts the police from all liability. It is a widely drawn power, which—on the Minister's estimate—can cost £60,000 for a set of premises if a mistake is made. Is it right that an order can be made when the incident is completely unrelated to the premises and does not even occur in the immediate vicinity? That is extremely unfair and unjust to the landlord of the public house. If the provision stipulated that the incident had to be related and in the immediate vicinity, we would all say that the Minister had a solid argument, but as it does not, how can he justify it?
The hon. Gentleman is entitled to disagree. A balance of judgment is involved between the obligation on the police, which the Bill seeks to reinforce, to secure public safety and public order in the areas of such premises—which are in a small minority—and the suggestion, which is where the hon. Gentleman falls into error, that unless the incident has a specific relationship to the premises concerned, no action should be taken.
I hope that the hon. Gentleman will reconsider the matter when he has had a chance to reflect on it.
The Minister must appreciate that under new section 179A(1)(a), the test is not that there is, but that there is likely to be, disorder in the vicinity. The Bill gives the police the power to make a decision to close all the pubs in the vicinity where they think that there might be disorder. Is the Minister seriously saying that the police will not use those powers very widely? I do not believe that that is the Minister's intention, but that is what will happen—the police have to operate under the precautionary principle, because if they do nothing and something happens, people will ask why. The Minister has made it clear that it is not the intention of the Bill that the powers should be so widely used, so he should accept the amendment.
The hon. Gentleman seems unable to accept the point, either because we disagree or because I am inarticulate in explaining it. Shortly after using the powers in the Bill, the police will have to justify their decision before magistrates, when a judgment will be made. When that hearing takes place, arguments will be advanced in respect of whether it was reasonable for the police to believe that the events were likely to happen. Will magistrates always say that whatever the police say has to be supported? I do not think so—that is not the way in which the system operates in any respect.
As the hon. Member for Surrey Heath suggested with his example of Twickenham and the Rugby Football Union, the police already have powers that allow them to take action in such circumstances. The powers in the Bill, subject as they are to magisterial jurisdiction immediately after they have been exercised, do not present the threats about which the hon. Gentleman is worried.
Amendments Nos. 37 and 38 would weaken the tests that the police have to apply before making a closure order. The hon. Members who tabled the amendments may be under the impression that it would do the opposite and strengthen the police's powers. Our assessment is that, under the present wording, the test that a senior police officer has to meet will be harder. Perhaps the hon. Gentleman will consider that. I think that his intention was to raise the profile of what the police need to do to deal with a particular circumstance. Under the clause as drafted, a senior police officer must reasonably believe that closure is necessary in the interests of public safety.
Hon. Members may think that including the word ``significantly'' would make it harder for a senior police officer to justify taking action. They are wrong. Unless we want to ease the test, the amendments need to be resisted, because in practice their wording would be unlikely to make a major difference to the way in which the police use the new powers in that circumstance.
Amendments Nos. 39, 84 and 133 deal with the ground of excessive noise and say that closure would not be possible unless a police officer had first asked the licensee of the premises to reduce the noise to a reasonable level. I repeat my general point about the way in which the police operate. It is right that they give warnings and ask for changes to take place. It is appropriate to give guidance.
In light of the powerful intervention by my hon. Friend the Member for Selby (Mr. Grogan), I shall give a little of the background of noise legislation that applies. The closure power for this purpose allows quick or immediate action to be taken to curtail a disturbance to the public, which is especially appropriate late at night. Under part III of the Environmental Protection Act 1990, a statutory nuisance is created if noise emitted from any premises causes a nuisance. Local authority officers have the power to enforce that provision by serving an abatement notice on the person responsible for the relevant premises. Failure to comply with an abatement notice is an offence, against which action can be taken in summary proceedings in magistrates courts. Under the Noise Act 1996, local authority officers also have the power to enter the premises to seize or remove any equipment that is causing the noise nuisance. However, where a disturbance is caused not by loud music but by noise from, for example, drunken louts, the procedures under those two Acts do not allow action to be taken to secure the immediate ending of the disturbance. That is the overall context, for which my hon. Friend asked.
If a police officer reasonably believes that a crowd is so boisterous or drunk that the noise will resume once the police leave, he should be able to close the premises to prevent the disturbance from occurring. The suggested changes would require the police to make two visits. For the reasons that I gave earlier, which relate to the process, that would be an undesirable restriction. Again, it is important to emphasise that the police are not required to close premises for 24 hours. We are talking about circumstances in which the closure might be as short as half an hour at the end of the day. If there is loud noise late at night, the police may want to close the premises at 10, rather than 11.30 pm. The penalty in such circumstances is not significant and not as overwhelming as the example that we were given earlier. Again, there is the power to test the situation later in a magistrates court in the way that I described.
In a moment.
Amendment No. 92 would require the police to ask the licensee reasonably to reduce or cease the excessive noise causing the disturbance. It is poorly conceived. Hon. Members have failed to appreciate that, at the point of consideration, the premises would be closed and the main consideration would be whether there was a threat of further disturbance if the pub reopened.
I have summarised the Government's arguments on most of the amendments. I am prepared to consider carefully the use of the word ``immediate'' because there is potential for confusion, which I do not want. The other amendments, well motivated as they are, would unduly restrict the police's ability to deal with what could be a serious public order and public safety issue. On those grounds, I hope that Opposition Members will consider withdrawing their amendments.
On the issue of noise, which the Minister has perfectly properly addressed, and cross-related environmental health legislation, I understand that the clause is about licensed premises, but I ask him to try to ensure, through officials and the Department of the Environment, Transport and the Regions, that we end up with streamlined processes in both licensed and unlicensed premises. I understand the arguments, but there are good grounds for police action in relation to noise nuisance in unlicensed premises too, just as there may be perfectly proper grounds for environmental health action in relation to licensed premises. That is not a matter for now, but it should be co-ordinated so that legislation can be simply applied, either by local authority officers or by the police.
I will take up that point. I will write to my colleagues in the Department of the Environment, Transport and the Regions to discuss the situation with them. The hon. Gentleman may be interested to know that noise is one of my preoccupations. When I am next on the Back Benches I shall initiate private Member's legislation on noise. I seek a peaceful society and hope that we can move forward on that basis.
I am sorry that the Minister has not considered the last third of the amendments, including amendment No. 133, which is about a uniformed police officer giving warnings. [Interruption.] I am happy to let the Minister conclude his remarks, but I should like to come back to speak to amendment No. 131. Will I have the chance to catch your eye again, Mr. Gale?
I apologise. It is entirely my fault for being late.
Having heard the Minister's arguments being deployed gradually to explain the various situations that arise from the use of these powers, I have become more and more appalled. We have listened to discussions on other parts of the Bill where the Minister has seemed with good intentions to be groping towards solutions to disorder problems. However, the powers here represent the worst accretions of the nanny state because they are drawn so widely.
The only licence that the police could oppose at Twickenham, in the example that my hon. Friend the Member for Surrey Heath and I gave, was the licence in Twickenham itself, which was renewed for each of the events. However, they could not close the pubs outside Twickenham on the assumption that there might be disorder. If 70,000 people are going to Twickenham, the police officer in charge of public safety can make a case that there is likely to be disorder in the vicinity of endless licensed premises on the way to and from the railway stations and in the area of the stadium itself. That is the test. He does not even have to have evidence, but simply a belief.
When the police are charged with public safety at major public events, they will use all the powers available to them. We saw them use them at Twickenham in an extremely unreasonable manner, which led to a vast number of problems. People could not drink inside Twickenham, so they were all displaced to the licensed premises outside, which the police could not touch under current regulations. Huge crowds of people all went into the stadium at the same time for the beginning of the match and they all came out at the end because they could not stay for two hours to have a quiet drink with their mates and then leave. Unwise police action caused a hugely increased public order problem.
Within 24 hours of any major sporting event and any demonstration or potential cause of public disorder, the police will argue that, because some people believe that there are problems, they should shut all the pubs in the vicinity. They can argue that there is the potential for alcohol-related disorders and that it is safest to impose a blanket ban. We are talking about the quality of life of people who want to go to football matches, enjoy a drink beforehand, meet their mates and then go to the match behaving in a thoroughly responsible way. They will not be abusing alcohol because they cannot enter a football stadium in a drunken state—that is already an offence.
The police will use the regulations that are being made available to them to the maximum extent because otherwise people will say that they had powers but had not used them to deal with incidents. Like anyone else, policemen will want to put up an umbrella against being blamed for not having explored all the avenues to stop public disorder. It is not the Minister's intention, but that would be the effect of the provision.
I cannot accept the Minister's blandishments and will not withdraw amendment No. 131, which deals with the vicinity of premises where there is merely a belief that there will be disorder. I will withdraw the amendments requiring evidence rather than belief and dealing with actual public disorder in the vicinity. However, it is completely unacceptable for the police to be able to make a judgment on not evidence but merely belief that there is likely to be disorder—and not even on the premises concerned. I shall press amendment No. 131 to a vote.
When the Government consulted on licensing reform in their White Paper, their proposal was much more tightly drawn. It would be a mistake to go with such a wide provision, particularly against a background in which officers will be exempt from liability. We want provisions that can close public houses that are rowdy or likely to be rowdy or where, as the Minister said in his letter to the BLRA,
``a fight between drunk and disorderly customers spills out onto the street outside the pub and requires attendance, the fight is directly connected with the pub and would not be happening if the pub were not open and serving alcohol in the immediate vicinity.''
I would go along with that, but the Minister is proposing something far wider. He is saying that disorder that an officer believes is likely in the vicinity does not have to be related to the premises. The Minister is proposing a far wider provision than the one with which he told the industry that he was trying to deal. In his letter, he referred to the immediate vicinity, but is now proposing the vicinity; where the incident had to be directly related to the pub, it does not now have to be connected in any way.
Under section 188 of the Licensing Act 1964 the police can seek an order from magistrates closing specific licensed premises to prevent riot or tumult. The police rarely seek such orders and the Bill would not change that. However, the police would use section 188 of the Licensing Act rather than the provision to close down licensed premises in a wide area.
The Minister is proceeding with the legislation because the procedures under section 188 are far more cumbersome. It is not likely that, given a choice, one would choose section 188—one would be likely to choose the procedure in the Bill because it is simpler. The worry is that the Minister is not putting in the protections that are necessary for the licensee, which can be a small business man or a large chain. If a small business man is faced with a bill for a mistake which, in the Minister's own notes, is somewhere between £1,100 and £60,000, the officer is exempt from liability. I accept that officers are, by and large, fantastic at their job but we all know of examples of police officers failing to act as we would hope. An officer could be reckless or negligent and a licensee or small business man could lose between £1,100 and £60,000. There is no protection because the provision is not drawn tightly enough to encourage an officer to be specific enough about what he is doing. It is drawn far too broadly to be successful.
The problem arises because draftsmen are encouraged to provide for a wide range of possibilities, but no one wants police officers who make mistakes to end up in trouble. The breadth of the provision is not an accident or a mistake: it is intentional. At the same time, however, officers are exempted from liability. The balance between the citizen business man and the state therefore becomes skewed. It really will not do.
Will the hon. Gentleman deal with my point about the role of the magistrates? Under new section 179A(4)(c), the closure order must
``specify the grounds for the making of the order'', and under new section 179B(3), the relevant justices have a range of powers to deal with the circumstances. It is not, apart from the first moment, up to the police officer alone; the justices subsequently have to make their judgments. Will the hon. Gentleman acknowledge that?
In a moment, but I want to finish my argument. Page 68 of the explanatory notes makes it clear that costs will range from £1,100 to £60,000 for each incident. That is a lot of money.
What is important is the link between the making of the closure order and the opportunity to get the matter before the magistrate so that it can be reviewed. The purpose of new sections 179A and 179B, as my hon. Friend mentioned, seems to be that as soon as the order has been made or the police officer is minded to make it—that could be a day earlier—the matter should then proceed quickly to the magistrate. Does my hon. Friend agree that, as drafted, the new sections do not achieve that?
My right hon. and learned Friend, with his background and knowledge in this sector, may wish to expand on that argument. The words
``as soon as reasonably practicable'' appear in new section 179B—clearly a wide-ranging formulation. As my right hon. and learned Friend said, there is a gap in the logic behind it. The extensions that can be granted during emergencies mean that it could be longer than a day before the matter is reviewed.
Exemption of liability means that an officer cannot be held to account by the publican in any circumstances, yet he faces the prospect of a large bill if a mistake is made. This widely drawn provision will allow premises to be closed if a couple of yobs in the road are fighting, even if the fight is wholly unrelated to the premises.
I hoped that the Minister would jump at the opportunities provided by the amendments and would acknowledge that, of course, any trouble should be in the immediate vicinity of the pub. Indeed, those were his words. I fail to understand why he cannot accept that any disorder must relate to the premises because, when he explained his attitude to the industry, he affirmed that disturbances would have to be directly connected with the pub.
I am not suspicious of the Minister's motives. I am sure that he has been advised to act in a certain way and is doing his best to achieve his ends within that advice, but he has not kept faith with the words that he used earlier to describe his intentions. His concession to think further about ``immediate'' was so qualified that he meant that there would be no guarantees of that happening at all. I am sure that the Minister will agree. To dismiss out of hand the idea that the disorder should be related to the premises is not good enough.
We would be happy to withdraw our amendments, save for No. 36, which deals with the immediacy issue, amendment No. 82, which would ensure that the disorder should be related to the premises, and amendment No. 84, which concerns the emission of noise, although I accept that that is not really part of the overall concept of the Bill, which is supposed to deal with public safety and people being put in danger. While irritating, noise is not in that category, but there should be a warning system under the Bill. Given the unsatisfactory nature of the Minister's explanation, I am minded to support amendment No. 131 tabled by my hon. Friend the Member for Reigate because to have the words
``or in the vicinity of'' in the Bill without there being a proper safeguard is unacceptable.
We will happily support the hon. Member for North-East Hertfordshire in pushing those three amendments to a Division. We shall also support amendment No. 131 tabled by the hon. Member for Reigate. The debate has been fairly wide and we took the view from the beginning that the clause needed to be improved considerably. It would merit from being taken away and redrafted because it is too widely drawn. We always live in hope that, given such non-core issues of national party policy, there might be a little flexibility on the part of the Back Benchers of the governing party and that they may be allowed to exercise some personal discretion and be unwhipped, as our electors always call for us to be. A good example would be set if the Whips were less dominant. We are minded to make strong representations later that the clause could benefit from being discussed with people outside as well as inside the Committee.
As for amendment No. 4, I am reassured by the Minister's remarks that he is willing to consider both the guidance option, which was his proposal but less appealing to us, and the regulation option, which was my proposal and more appealing to us.
Following the hon. Gentleman's earlier comments, I was not aware that the Department of the Environment, Transport and the Regions had conducted a review of the Noise Act 1996. My right hon. Friend the Home Secretary has written to the DETR about it.
I am grateful to the Minister. Perhaps he will be kind enough to ask his colleague to let us have sight of that correspondence if it is the type of correspondence that a Government who believe in freedom of information will allow us to see. It will be a mini-test of whether interdepartmental correspondence can see the light of day. We live in hope. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: No. 131, in page 10, line 9, leave out
``, or in the vicinity of,''.—[Mr. Blunt.]
Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 11.
Question accordingly negatived.
Amendment proposed: No. 84, in page 10, line 15, after ``(c)'', insert
``having made a request to the holder of the licence to act reasonably by reducing or ceasing the emission of noise from the premises''.—[Mr. Heald.]
Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 11.
On a point of order, Mr. Gale. I have two points, both which I hope that you will regard as points of order. I draw your attention and that of the Clerks of the House to an error that my hon. Friends and I believe has crept into the amendment paper, relating to amendments Nos. 18 and 19, to clauses 35 and 37.
In discussion with my hon. Friends this morning, we discovered that, in addition to the name of my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and my hon. Friend the Member for North Wiltshire (Mr. Gray), my name and that of my hon. Friend the Member for North-East Hertfordshire should also appear. I tabled the amendments, and purely for the sake of completeness, we thought that we should draw the matter to your attention so that that was clear on the amendment paper. We were worried that if our names did not appear, neither my hon. Friend the Member for North-East Hertfordshire nor myself would be able to speak to the amendments. We understood that a similar point arose during consideration of the Hunting Bill, and your counterpart, the Chairman of that Committee, said that as long as the name of a member of the Committee appeared, other hon. Members could speak to the amendment.
My second point of order relates to when, at the last sitting before the short recess, the Minister of State was pressed by my hon. Friend the Member for North-East Hertfordshire. At column 235, on the afternoon of 15 February, when my hon. Friend questioned the Minister on data, evidence and mapping of local authorities, my hon. Friend said:
``It would be interesting to know a little more about this. Could the Minister allow us to see some of this information? Can he make it available over the recess?''
The Minister responded:
``I would be happy to do that.''—[Official Report, Standing Committee F, 15 February 2001; c. 235.]
As my hon. Friend said, we were all grateful that late yesterday afternoon, on the Members' Board, we finally received the draft guidance from the Minister. However, nothing has come in response to his promise to my hon. Friend at column 235. I thought that we should mention that so that the Minister was aware of it.
On the first point, the hon. Gentleman's information is entirely correct. As long as one of the names on the amendment paper is that of a member of the Committee, any member of the Committee may speak to an amendment once it has been moved. The hon. Gentleman noticed that both amendments to which he refers have been selected, and considerable time will probably be available between now and when we discuss those amendments for him to ensure that other names are added if he wishes to do so.
On his second point, the hon. Gentleman will appreciate that the provision of papers and responses offered by a Minister is entirely a matter for the Minister. If the Minister wishes to respond he may of course do so.
I apologise to the Committee for not circulating the response. I had hoped to do so by today. I hope now to be able to do so by the time that we next meet, on Thursday.
On a point of order, Mr. Gale. As we have had two, we might as well have a third now, rather than later. Anticipating business here and downstairs later, on the best intelligence that I have as someone with a departmental interest in the Bill downstairs, I ask you to consider before we break at 7.30 pm or 7 pm whether in the time approaching and immediately after 10 pm—which is scheduled for possible votes downstairs, although we do not know whether they will happen—we might ensure that the Committee does not sit.
Under the timetable motion, provision is made for votes at 10 pm. My intelligence is that it is not yet clear whether such votes are likely to be taken. I think that colleagues would be keen to be present at the beginning of the process to inform themselves about a complex set of votes and it would be helpful to have an agreement not to sit at that time.
My understanding from the usual channels is that the intention is for the Committee to sit from 8.30 pm until 10 pm. That being so, it has always been my custom to suspend the sitting at 7 pm, for the well-being of the officers of the House apart from anything else. We should have a clear hour and a half as a dinner break.
I intend to suspend the Committee, in whatever form it may be, at 7 pm. If that coincides with a Division, it will be a happy circumstance. I shall then suspend the Committee again, as hon. Members would expect, for a Division of the House. If that coincides with 10 o'clock, provided that no hon. Member is on his or her feet, the Government Whip will be able to move the adjournment of the day's sitting.
I hope that that makes the position clear. We shall of course endeavour to accommodate Divisions as best we can, but I am afraid that it is not in my gift to interrupt the Committee's proceedings otherwise to take account of votes, and nor would I wish to do so. The timetable motion on the Floor of the House is one matter and a timetable motion on this Bill is another. It is my happy job to manage the latter rather than the former.
With this we may discuss the following amendments: No. 85, in page 11, line 1, after `order,' insert `then in force'.
No. 86, in page 11, line 2, after `exceeding', insert
`£6,000 for a first offence; or, for a second or subsequent offence to a fine not exceeding'.
No. 134, in page 11, line 2, leave out `£20,000' and insert `£5,000'.'.
This is essentially a technical amendment. Proposed new section 179A(6) provides that a person who without reasonable excuse permits relevant licensed premises to be open in contravention of a closure order made by a senior police officer shall be guilty of an offence. The Committee will know that under proposed new section 179C, the senior police officer may in certain circumstances extend the closure order for a period not exceeding 24 hours.
It is important that the extent of the offence under proposed new section 179A(6) is clear, and that a breach of the closure order includes any extension of it made under proposed new section 179C(1). The purpose of the amendment is to clarify the position for those people on whom closure orders are served, for the police required to enforce the law and for the courts when an alleged offender is brought before them. If the legislative scheme is to work sensibly when there is no reasonable excuse, contraventions of a closure order or any extensions of it should be offences. That is the meaning of the amendment.
The Government amendment seems to be a sensible clarification in relation to offences committed during the period of the order or an extension to it. I do not need to spend long on that.
Amendment No. 85 is intended to provide clarification. The Brewers and Licensed Retailers Association wanted it to be made clear that the closure order would have to be in force at the time that the breach occurred. Will the Minister assure the Committee that the current wording means that the closure order is in force, and not that it would not be acceptable if another situation arose?
Amendment No. 86 raises a more substantial issue. Proposed new section 179A(6) states:
``A person who, without reasonable excuse, permits relevant licensed premises to be open in contravention of a closure order shall be guilty of an offence and shall be liable to a fine not exceeding £20,000''.
The amendment would reduce that to £6,000 for a first offence. If orders are to be made without the legal requirement for warning to have been given, should the maximum fine be as high as the provision suggests?
If the Government had listened during previous debates, and the Bill contained the sort of protections that we wanted, that would be a different matter. If closure orders can be made when no warning has been given, one can imagine situations in which such a high maximum fine would not be appropriate. I do not need to remind the Committee of the costs that could be imposed on the industry as a result of orders that were made without any failing on the part of the landlord or the staff of the premises. The costs to industry overall are given as £1.1 million to £60 million, which shows that the Government do not have confidence about what the true figure would be. As for innocent closures, the costs nationwide are estimated at £16,500 to £900,000. The Government are about to issue guidance to the police on the issue and should be able carefully to set the parameters of the law. It sums up their half-baked approach that they are not able even to give a decent estimate—a ballpark figure—of the costs that could be imposed on industry. Given that innocent traders could be disadvantaged by the measures, the maximum for a first offence should be lower, to reflect the fact that the person concerned may have received no warning.
I want to speak to amendment No. 134, which would reduce the fine of £20,000 to £5,000. Many of the aims of my amendment would be met by amendment No. 86. The scale of punishments should be related back to what the Minister told us about the purpose of the Bill, which is about disorder. Its purpose is not to punish licensees, he told us—yet the punishments in the clause are pretty savage by any standard. In relation to the fine scales 1 to 5, three months' imprisonment equates to a much lower punishment than the £20,000 in the Bill.
We have just debated the circumstances in which closure orders might be made; they are likely to be highly controversial, and the powers of the police may be extended further than they should be. Given that the Bill contains no requirement for a warning to licensees, those with large premises, especially on the first occasion on which they are subjected to such an order, may find that they are in breach simply because someone is serving a drink around the corner, on another part of their premises. Licensees would then have committed a technical breach and be liable to a fine of £20,000 or three months' imprisonment. That is much too severe.
It is different if licensees make commercial judgments and reason that they will lose £60,000 if they shut so decide that they will remain open, take the profit and pay the £20,000 fine. If they make that judgment, it would be proper for the magistrates to consider imprisonment rather than the fine; people should not be offered the opportunity to make commercial judgments under the provisions. However, the size of the fine does not need to be racked up to give licensees a commercial incentive to obey the police and to close. Instead of giving such licensees the fine, which is the option that they want, we should give them a short salutary lesson at Her Majesty's pleasure, which is the option that they do not want. That would be a proper decision for the magistrates to take. The fine should be much lower than the £20,000 maximum.
I take the point made by my hon. Friend that the fine could be £6,000 for a first offence. That would meet my concerns. If my he presses his amendment to a vote, I shall certainly not press mine.
The Government amendment is entirely unexceptional and, therefore, acceptable. The other amendments raise an important set of issues relating to how to deal with any failure to comply with the order. It is necessary to ensure that where an order has been breached there is a strict statement of the legal consequences. The result of such a breach should be made clear. The Bill currently proposes the options of a fine of up to £20,000 or a prison term of up to three months. This is one of those difficult situations in which one tries to provide the envelope, but one should consider what the sentencing guidelines are likely to be. For a first offence, a prison sentence would clearly be inappropriate. Any logical sentencing policy would consider a fine under such circumstances.
It could be argued that the level of the fine should be entirely up to the magistrates, leaving them to take into account issues such as the turnover of the establishment, whether it is owned privately or by an individual or whether it is part of a national chain and so on. Nevertheless, there is a strong argument for having a first offence provision at a lower level than the maximum penalty of £20,000 set out in the Bill. As the Minister said in another context, there is no theology about the matter and there is no obvious answer. One should take appropriate considerations into account, particularly when one is fining the corporate owner of a business.
I would like to link that to another type of offence for which owners of premises are fined and punished—breaches of health and safety law. Generally speaking, such breaches are of one of two sorts. They can take the form of lack of cleanliness and that sort of thing, or they can occur when somebody running some premises fails to comply with the requirements in such a way as to render those premises unsafe.
We must ensure that we get these matters in perspective. I have long supported the creation of an offence of corporate manslaughter. The Government intend to legislate on that, but sadly they have not yet done so. I have always felt that the maximum penalties for many of the breaches of health and safety legislation are too low. When somebody's life has been put at risk or indeed lost, as a result of a failure to have proper scaffolding, or proper control of building sites or vessels—in the case of the Herald of Free Enterprise, for example—the maximum penalties are often too low. It would be inappropriate to have a very high maximum level set for the sort of offence covered by the clause, but a much lower level for offences such as those I have just described.
I cannot remember exactly, but my recollection is that the maximum penalties are still extremely low for breaches of the law that risk people's lives and their physical well-being in a way that is much more direct than the offences under discussion. All I ask is that we do not jump to a conclusion, plucked off the shelf because it sounds tough, without taking into account the logical sequence of punishment—first offence and thereafter. The tariff for a first offence should be reasonable. If the Minister cannot supply the Committee with the data now, I would like someone to examine the comparative fines for such health and safety breaches, which are the sort of penalties for which publicans or owners of pubs could be liable, and tell the Committee what they are.
I do not really accept a number of the propositions that have been advanced. First, I will deal with the concern of the hon. Member for Reigate about penalising the licensee. Proposed new section 179B(5) states:
``A person who, without reasonable excuse, permits relevant licensed premises to be open in contravention of an order...shall be guilty of an offence and shall be liable''.
The provision does not concern a person who has had his premises closed. This is not somebody in whose case an issue has been raised or a judgment taken and whose premises have been closed. The provision concerns people who, without reasonable excuse, keep their premises open in contravention of a closure order. That is a quite different state of affairs. The suggestion that the measure in some way penalises legitimate licensees is false, and it does not contradict the argument that I sought to make earlier. There is no suggestion that it is an offence for licensees to have their premises closed; the penalty is for contravening an order.
With respect to the hon. Member for Southwark, North and Bermondsey, similar points arise on health and safety. Such offences are the result of people not having kept their premises in appropriate order under health and safety law and whatever other legislation might apply. Again, it is not necessarily in contravention of the specific order of a police officer—or, indeed, of a magistrate—but is the result of the general conduct of managing the premises.
I shall give an example because, as the Minister said, he is interested in noise. If, under proposed new section 179A(1)(c), a disturbance is being caused to the public by excessive noise, no warning will have been given because the Minister refuses to make it part of the law. The constable who attends—it will not be the senior police officer who made the decision—will hand a piece of paper to the landlord and say, ``Your noise level is too high. We're closing the place.'' The Minister may say that is an extreme example, but one can imagine that there might be a certain amount of argument between the publican and the police officer about the level of noise. The publican may want to speak to his lawyer and will disappear to use the telephone. Meanwhile, the premises will remain open after service of the notice.
The Bill is strict as regards the publican, because 179A(5) states:
``A closure order comes into force as soon as notice of the order is given by a constable to...the holder of the justices' licence''.
If the publican spends half an hour taking legal advice, is the Minister saying that he should face a fine for a first offence that does not exceed £20,000? That levers up the level of fine that will be imposed.
I shall come to that when dealing with the amendments. I was trying to make a general point. It should not be controversial to a lawyer to suggest that if someone does not go along with a legally made order, there is a problem. No one is suggesting that those who go along with such orders should face such a penalty; the penalties apply only to those who do not obey them. Is the hon. Gentleman asking whether it is a reasonable excuse for a publican to want to consult his lawyer? I do not know whether that would be regarded as a reasonable excuse. However, it is important that we should support the authority of the police and the magistrates courts in such circumstances. The sort of commercial judgments that he is talking about will be made a few days down the line. I do not accept that a penalty that includes the possibility of imprisonment for someone deliberately contravening an order is the same as penalising a licensee by closing premises in the circumstances that we spoke about earlier. That is the only point that I am trying to make.
I completely understand that point. If it was not clear, I was seeking to draw a parallel with similar circumstances in relation to other legislation under which orders can be served. They can be served by environmental health officers, the Health and Safety Executive and others. I want to be sure of comparability between the penalties for people who do not comply with an order, whether on health, safety or other grounds.
That is a fair point, and I shall address it when speaking to the amendments. I wanted to highlight the difference between the penalty for not going along with an order and having one's premises closed.
That was my concern. The Minister seemed to imply that I was suggesting that that was not the case. I understand exactly what is in the Bill. I was saying that because of the wide way in which the powers have been drawn, the serving of a closure notice is likely to be controversial. The publican may be instantly guilty of the offence, but he may need some time to be convinced of the merits of the case. Because some licensees may not be aware of the exact nature of the law in this area, a fine for a first offence of £20,000 is wholly inappropriate.
The hon. Gentleman has made it clear that we do not have a misunderstanding. I needed to clear the matter up because he said that it was a demonstration of his earlier point that the general powers represented a penalisation of the licensee, which is not the case.
I am grateful for the comments made by both Government and Opposition Members on Government amendment No. 113. The point made by the hon. Member for North-East Hertfordshire about amendment No. 85 is broadly correct. The amendment is designed to make it clear that an offence is committed only if the closure order is in force and has not been revoked by the justices. The additional words introduced by the amendment are unnecessary, as there will be no order to breach in the first place if the order is not in force. I think that I can give the hon. Gentleman the clarity that he seeks.
As the hon. Gentleman said, amendment No. 86 covers a more serious point, as it would reduce the maximum penalty for a first offence from £20,000 to £6,000. Amendment No. 134 would reduce the maximum penalty to £5,000, so there is a relatively marginal distinction between the two. If someone reopens licensed premises in contravention of a closure order, it is for the court that has convicted him or her to decide on the appropriate sentence. That is how our legal system works. However, we believe that the court should be able to consider a fine of £20,000 in the most serious cases.
There are two reasons why we suggest that figure. First, breach of an order could place public safety at risk. Let us recall that the reason for the order in the first place is concern for public safety, as magistrates can impose an order only if they believe that public safety is at risk. The gravity of the risk is already recognised in the law. Someone who breaches a condition of a public entertainment licence, which imposes a safe capacity limit on admission, is liable to a maximum fine of £20,000. That is the sort of direct comparison that the hon. Member for Southwark, North and Bermondsey wanted. The same penalty of £20,000 may be applied where a fire authority's safety requirement on premises is flouted. Breach of a closure order, with its implications for public safety, is of the same category, which is why we picked a figure broadly similar to that used in other aspects of law.
The second point is that if a licensee believes that he is likely to lose his licence, because the circumstances of the closure could reflect badly on him in the subsequent review of the licence by the licensing justices under new section 179E of the Licensing Act 1964, he might think that he might as well open for business while he can and make as much money as possible. In the case of a large establishment, that could well exceed the figures of £5,000 or £6,000 suggested in the amendments. For the worst cases, the deterrent has to be substantial.
I acknowledge a point made by the hon. Member for Southwark, North and Bermondsey, which was that, as with all such matters, the establishment of a top limit on sentencing guidelines and their operation are matters for the discretion of the court. As a non-lawyer, I sometimes wish that courts did not have such discretions, but that is the system that we operate. We must decide as a Committee, and the House must decide on Report, whether £20,000 is unreasonable. The comparisons that I have made are reasonable, and if someone were intent on flouting the law, a maximum of £5,000 or £6,000, as in the amendments, would be too low. I hope that the hon. Members for Reigate and for North-East Hertfordshire will reconsider and not press their amendments to a vote.
May I gently remind the Committee that it is not possible to withdraw an amendment that has not been moved? In each group of amendments, only the lead amendment is initially moved. All others are taken, if moved, in the order that they arise in the amendment paper.
Amendment agreed to.
With this it will be convenient to take the following amendments: No. 41, in page 11, line 1, after `liable', insert `on conviction on indictment'.
No. 42, in page 11, line 36, after `liable', insert `on summary conviction'.
No. 43, in page 11, line 36, after `liable', insert `on conviction on indictment'.
No. 44, in page 11, line 42, after `liable', insert `on summary conviction'.
No. 45, in page 11, line 42, after `liable', insert `on conviction on indictment'.
I simply say that the hon. Member for North-East Hertfordshire is correct. The amendments are unnecessary, as the Licensing Act 1964 already provides that all offences under that Act are required to be tried summarily in magistrates courts. Section 194(1) of the Act makes that absolutely clear, so the amendments are unnecessary. I hope that, on consideration, the hon. Gentleman will withdraw them.
With this, it will be convenient to take the following amendments: No. 88, in page 11, line 11, at end insert—
`( ) The person given notice of the closure order and the holder of the licence (if different) shall be entitled to be heard upon the justices' consideration in accordance with subsection (2) whether to exercise their powers under subsection (3) of this section.'.
No. 89, in page 11, leave out lines 18 and 19.
The amendments are designed to ensure that the licensee and the person on whom the notice of closure is served have an adequate opportunity to be heard by the court. The effect of amendment No. 87 is that, where the clause says that the justices shall,
``as soon as reasonably practicable, consider whether to exercise their powers'', at which point the three options are available to them, the person who has been given notice of the order should have at least three hours to appear before them, so that he can, however briefly, consider his position.
The BLRA supports the principle that reasonable notice should precede any further action leading to statutory closure, with its consequences. That matter could be dealt with either by guidance or by amendment, but the Minister should tell us what he has in mind to ensure that the licensee or person served with the notice has an opportunity to be heard and set forward his views.
The same applies to amendment No. 88. Under subsection (3), a closure order will be brought before the magistrates and they may take one of the three courses of action: revocation, ordering the premises to remain closed until a decision has been taken by the licensing justices or making any other order in relation to the premises. That amendment would give the licence holder or manager of licensed premises the right to have his opinion heard during such consideration.
Amendment No. 89 is slightly different, because it would remove the third option. In other words, the magistrates would be able either to revoke the order or to order that the premises were to remain closed, but they would not be able to
``make any other order as they think fit in relation to the premises''.
This is a probing amendment, because we would like to know what that provision means. We hope that the Minister can explain to us what sort of orders he has in mind under paragraph (c). So the purport of the amendments is to allow a right to be heard, and to find out what the Minister has in mind under paragraph (c).
First, Mr. Gale, I apologise for not being able to be present this morning. I was attending the Standards and Privileges Committee, and I cannot be in two places at once.
These are important probing amendments—indeed, I think that they go a little further than that, because amendments Nos. 87 and 88 insert important rights. I hope that there is common ground between us and the Minister on the principle; we must decide whether we have fulfilled it. Are we to make a substantial jump from the current position under the Criminal Justice Act 1988, whereby if the police anticipate a riot, they can apply to the magistrates court for closure orders? As the Minister said earlier, we know that in practice they do not do so. They are now being given powers under which they can close licensed premises not at a whim, but subject to the light test that they reasonably believe that such a closure would be in the interests of public safety.
We must get the balance right, first, so that the police are not tempted to use such powers too freely or lightly and, secondly, to ensure that when they wish to use them—they may be right to do so—at least the licensee has an opportunity, promptly and preferably before the closure order comes into effect, to have the matter heard and decided by a magistrates court. Unless we have that opportunity, such a power could become very oppressive.
The position will be worse than that because, when an oppressive power is used unwisely, it gets a bad name and the police who, by and large, receive the respect and co-operation of the majority of the British public and licensees will then suddenly find that the licensees in the vicinity regard them differently. A good example was given by my hon. Friend the Member for Reigate when he referred to the roads that presumably lead to Twickenham. If pubs in that or any other area that people habitually visit are suddenly closed for periods at the order of the police, notices will go up in the pubs saying, ``I am sorry that we were closed, but the police insisted on doing so. Such action was not reasonable.'' As a result, respect for the police will be reduced, and the common objective of law and order, which is a proportionate and sensible exercise of power and, consequently, the maintenance of policing by consent will be weakened.
Amendment No. 87 would provide that a pub owner was given at least three hours' notice of the fact that the case was to appear before the magistrates court. It is obviously desirable to achieve that in practice. Likewise, I hope that the Minister will agree that it is essential that the pub owner has the right to be heard before a court before such powers are exercised, as set out in amendment No. 88. Indeed, the European convention on human rights would require that that was so, given that the use of his property was being interfered with.
I reinforce what my hon. Friend the Member for North-East Hertfordshire said in relation to leaving out subsection (3)(c), when he asked the meaning of
``make any other order as they think fit in relation to the premises''.
Is such a formulation common in such legislation? I confess that, to me, it is novel rigmarole, although one usually finds that there is a precedent for almost everything. Whether or not there is a precedent for such a measure, such a provision seems extraordinarily wide. I assume that it would have to be construed sui generis— if we are still allowed to use the Latin term—in a manner that is akin to the overall meaning of the clause. For example, would magistrates be entitled to make an order saying that, although the premises could remain open, the landlord should not be entitled to sell more than one pint of beer to each customer in a 24-hour period? That would no doubt reduce rowdyism, although it might cause dissatisfaction among larger beer drinkers. Could an order be made saying that the premises were to be re-designed, for example, to keep certain doors locked or to provide partitions between the saloon bar and the family bar? Could such orders be made if they could in some way be related to the question of law and order? The provision seems extremely wide, and we are right to probe it. I look forward to the Minister's answers.
Amendments Nos. 87 and 88 on one hand and 89 on the other raise qualitatively different points for discussion. Amendments Nos. 87 and 88 concern the court procedures before the relevant justices in new section 179B. Amendment No. 87 would prevent the proceedings before the relevant justices taking place unless the person served with a closure order had been given three hours' notice. Amendment No. 88 would give that person and the holder of the justices' licence, if different, the right to make representations to the justices during the hearing. Both amendments reflect anxieties in the licensed trade that there are no procedures in the Bill requiring that licensees be notified of the hearing before the relevant justices or that they should have a right to make representations to the court on the issue of closure. I think that Opposition Members will accept that the amendments are unnecessary. The relevant justices at the initial hearing will operate according to normal magistrates court procedures and human rights law. I am grateful to the right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) for referring to that.
There is no doubt that the licensee or manager served with a closure order will be notified by the court about the time and place of the hearing, will have a right to appear before the justices if he or she wants to do so and will be able to be legally represented and to make representations to the justices. We are concerned that the proceedings should take place as quickly as possible, which is why a single justice will suffice and the best and swiftest means of notifying the licensee will be left to the court to decide. That will allow the court maximum flexibility and will cut the need for any police extensions and put the matter in the justices' hands as quickly as possible.
The process and the flexibility that it entails are entirely in the best interests of the licensed trade. Although I understand the concerns raised about what may or may not be in the Bill, I hope that the right hon. and learned Member for North-East Bedfordshire, the hon. Member for North-East Hertfordshire and the trade will accept that the provisions that are already there for the operation of magistrates courts and the Human Rights Act 1998 provide the security that is warranted.
New section 179F(5) is a failsafe device intended to allow the Secretary of State to make regulations on procedural matters if any justifiable concerns arose about the practices adopted by the courts or if the courts considered that they needed additional and exceptional procedures to be set down. However, I do not expect such regulations to be needed. As I said, I am confident that the courts will establish fair proceedings in this context. I have addressed amendments Nos. 87 and 88 and will now address amendment No. 89.
Mr. Hawkins rose—
Sir Nicholas Lyell rose—
If necessary, I declare an interest as an officer of the all-party parliamentary beer group, in which the hon. Member for Selby has also played a part.
I have listened carefully to all that the Minister has said. Given that the vehicle chosen by the Government in this part of the Bill is to amend the primary Act—the Licensing Act 1964—which affects the whole licensed trade, does he not accept that that is an extra reason why the licensed trade would like the safeguards to be in the Bill? If it becomes law, it will be a revised version of the major piece of licensing legislation. We are talking not just about this Bill, but about the fact that it affects the primary Act. That is why it would be helpful for the safeguards to be in the Bill, even though the Minister is trying to reassure us by saying that general magistrates court procedures will apply. The Government have changed quite a lot about the way in which magistrates courts operate, so I can understand the concern of the licensed trade.
I do not accept that. Magistrates courts work in a way that is well established. The Human Rights Act provides important defences and I believe that the process will be absolutely clear. The requirements that anyone might have for the rights of audience are there in an effective way.
We are focusing on amendments that suggest that the licensees should be given a certain amount of notice when the matter is taken to the court. Could the Minister slot that into the overall framework of how he sees this working? I think that he would agree that it is more desirable that the police officer should give notice of his intention to impose a closure order, which I think that he can, for, let us say, the following day and should give an opportunity for the matter to be heard before a magistrate later that day. Is that the correct framework, or is it as cumbersome as it seems and must he give the closure order that day and then rush round to the magistrates when the matter has already been closed? I may have missed something as I had to be absent, but could the Minister explain?
The right hon. and learned Gentleman is right. We debated this matter at some length while he was away during this afternoon's sitting. I understand that he was at the Standards and Privileges Committee during the morning sitting. I simply repeat that my expectation is that, in accordance with widespread practice, the police will give warnings and magistrates will operate as rapidly as possible; that is the explanation for the phrasing. I believe that the process will provide all the security that any licensee would want.
I shall repeat an argument that I made a moment ago for the sake of emphasis. We all try to follow Winston Churchill's example and we repeat things to emphasise them, as the hon. Member for North-East Hertfordshire said this morning. We believe that there is a virtue in flexibility to get the hearings in front of magistrates as rapidly as possible. It is in the interests of both the police and the licensee.
Amendment No. 89 would take away from the relevant justices the ability, when considering a closure order made by a senior police officer, to do anything other than revoke or extend the order. The City of Westminster Act 1996 is a model for the clauses on the closure of unlicensed premises. The Bill as published gives the justices an additional option to make any other order as they think fit in relation to the licensed premises that have been closed. The amendment would remove that additional option.
We think that it is sensible to ensure as much flexibility as possible. Cases may arise in which premises have been quite correctly closed, but where it would be safe and acceptable for the justices to allow them to reopen provided that some precaution was taken to avoid an early repetition of the problem that prompted the closure. Let us suppose that there has been a large fight between two groups of sports fans in a pub displaying a slogan that one group finds provocative. The justices might take the view that the pub should remove the slogan, and be able to reopen if it did so. That was the kind of example given by the right hon. and learned Member for North-East Bedfordshire a moment ago. If the justices could only revoke or extend the closure order they might feel obliged to keep the pub closed, whereas a relatively simple act would ensure that the pub could open.
Another example of a situation where an order might be made under subsection (3)(c) might be where the justices wanted to maintain the closure order but not until the next licensing sessions and only until after the next weekend. Again, flexibility is the order of the day. Those examples show why the flexibility that the amendment would remove is necessary to avoid doing unnecessary damage to business.
I do not have to hand the specific representations on that point, but the general point that comes from magistrates and the discussions that we have had on this issue is the need to operate as flexibly as possible so that everyone can work to get normal business resumed as rapidly as possible. There is always a danger in flexibility. Powers might seem overweening in certain circumstances and that is what the hon. Gentleman is understandably trying to probe in his amendment.
I appreciate that giving justices the power to make whatever order they think fit may appear wide, but the range of circumstances that could lead to the making of a closure order is itself wide and it would not be sensible to hedge the justices' powers at the review stage. In fact, the power is not as open-ended as it appears at first sight. In context, it should be understood as a qualification of the power to order an extension to a closure order, not as an addition to that power.
The options are straightforward. Either we say that justices have the power to revoke the order and extension of it, or to order the relevant licensed premises to remain closed until the licensing justices deal with relevant matters; or we say that there is room for flexibility. We could try to circumscribe flexibility further by providing a tighter wording than
``make any other order as they think fit'', but it is difficult to predict what circumstances will apply. I see no evidence that justices—I emphasise that we are talking about justices, not the police—would abuse this power, which could help to resolve difficult situations in the interests of the licensed industry and the safety of the community as a whole.
The Minister says that they are good examples, but might not other circumstances be relevant? He has confirmed the point made by my right hon. and learned Friend the Member for North-East Bedfordshire that paragraph (c) must be read as sui generis in relation to paragraphs (b) and (c). We have heard that conditions of revocation could apply and that paragraph (b) provides an ``unless'' provision: is that it, or might there be other examples out there?
I have given several examples. The hon. Gentleman could have tabled an amendment to specify different types of qualification, but his amendment would effectively confine matters to paragraphs (a) and (b), which might unduly restrict the flexibility that justices could use in the interests of business and the community. I could understand it if, instead of paragraph (c), the hon. Gentleman wanted paragraphs (c), (d), (e), (f) and (g) to provide justices with a more specific range of options, albeit less flexible than the current position. If the hon. Gentleman is saying that justices would abuse this wide power and damage the industry, the licensee and the business, I simply do not accept that.
On that basis, I hope that the hon. Member for North-East Hertfordshire will withdraw the amendment.
Before my hon. Friend responds to the request to withdraw, I want to make two quick points. First, on proper notice and the right to be heard, I have anxieties about the notion that the European convention on human rights will prescribe such and such, so it need not be written into legislation. My understanding is that our legislation should comply with it, not that our obligations under the convention should substitute for correctly drawn legislation. Will the Minister deal with that point?
Secondly, I am worried about the flexibility in paragraph (c). It is tempting to say that flexibility is always a good idea, but sometimes flexibility can be astonishingly wide. I was interested to hear about the City of Westminster Act 1996, which was passed for the benefit of one London borough out of the whole of England and Wales and possibly the whole of the United Kingdom. That is a pretty small tail to wag the national dog. It may be that that Bill was not scrutinised as closely as it should have been.
It might well have been. I was a member of that Government and I was also responsible for the quality of legislation in theory—wonderful theory. I may have failed to notice that clause slipping into a Bill that in theory I should have scrutinised. If I am prepared to say mea culpa, the Minister should be all the more ready to accept it as a good reason for not pressing ahead with something about which I now have considerable doubts. I am inclined to suggest to my hon. Friend that we should vote against it unless we get a really sensible reason for such a broad brush extension.
Starting with the procedural matters, in a way under our present regime it is for the Minister to say what his intention is; I hate to mention Pepper v. Hart, but I suppose I should. The courts can always look to see what his intention was. We are then in that happy position of having a more satisfactory law. I share my right hon. and learned Friend's concern that it is never as good to have law that has holes in it and a Minister's assurances about it as to have the right law. [Interruption.] I notice the hon. Member for Birmingham, Hall Green (Mr. McCabe) saying that this is slightly repetitive, but it is a point that I shall continue to make, as there is bad drafting.
The Minister has the ability to deal with the matter by regulation under proposed new section 179F(5), but why is he not prepared to write it into the Bill? Does he feel that these procedural matters should be dealt with in secondary legislation? Although these protections are contained in the European convention on human rights, the obligation is for them to be expressed in our law, which may happen only when future regulations are made. Could the Minister consider between now and Report stage whether he could write a little more assurance into the Bill, or alternatively, produce some draft regulations that we could consider? Those regulations might satisfy us on the procedural aspects. One thing is certain: if there is not proper notice and a proper right to be heard, all the prosecutors will end up having considerable time in court at the public expense. We do not want that. We want to get it right.
I share the concerns of my right hon. and learned Friend the Member for North-East Bedfordshire about amendment No. 89 and the Minister's response to it. It is not a procedural matter. It is more important, and concerns the nature of the order that the justices can make. All we needed was for the Minister to have been prepared to nail his colours to the mast and say, ``Yes, what I mean here is that a revocation order can have conditions attached to it and an order for the premises to remain closed can be an unless order.'' That is all we seek with our proposal to delete paragraph (c). However, the Minister kept on using the word ``examples''. He was not specific. That is what worries me. I want precision, not the handing out of wide powers that no one is nailed down to.
Unless the Minister is prepared to help by giving a cast-iron assurance that paragraph (c) means what I have suggested it means, we will have to press amendment No. 89 to a vote. However, I would be prepared to give further consideration to amendments Nos. 87 and 88, and for that reason I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: No. 89, in page 11, leave out lines 18 and 19.—[Mr. Heald.]
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 11.
With this it will be convenient to consider the following amendments: No. 91, in page 12, line 21, leave out `previous' and insert `initial'.
No. 93, in page 12, line 42, after `given', insert `8 hours'.
Amendments Nos. 90 and 91 are a pair and are designed to ensure that the police would not be able to close premises for more than 48 hours without the intervention of the justices. Allowing a single extension of a further 24 hours would mean that the closure order could last for a maximum of 48 hours on the say-so of the senior police officer, and within that period the matter would have to be considered by the justices. We consider a period of 48 hours—which is longer than was originally proposed in the licensing White Paper—to be reasonable because we realise that in certain circumstances it is simply not possible for a hearing to take place in 24 hours. However, we are concerned that a period of more than 48 hours would raise the question whether the procedures respect the right of the individual to a fair trial and protection of property. In that context, we ask the Minister to accept that there should be certainty in respect of the initial period of closure. Allowing repeat extensions is simply not acceptable.
Amendment No. 93 would require that eight hours' notice be given. Licensees would thereby be given reasonable notice regarding whether their premises are to remain subject to a closure order. If no such notice is given, they will be left in limbo in respect of reopening arrangements, which would be unfair to them and their employees.
The amendments would limit the period of extension to 48 hours and provide a proper period of notice.
I am very sympathetic to the proposals. It is important to have a limit on the closure that can result from the actions of the police. It is reasonable that there should be a second 24-hour period, which the amendment would permit, but not reasonable that the matter should not go before a court for determination after that. I hope that the Minister is sympathetic.
Subsections (1) and (2) of new section 179B clarify the responsibility of everyone to ensure that the relevant hearings take place as quickly as possible, and that is the climate in which we are discussing the amendments.
Amendments Nos. 90 and 91 would prevent the police from making more than one extension of the closure order when the relevant justices were unable to hear the matter. New section 179C permits the responsible senior police officer to extend a closure order for up to 24 hours in the circumstances described. However, under new section 179B(1), the senior police officer is under a duty to apply to the relevant justices
``as soon as reasonably practicable''.
New section 179B(2) places the same duty on the justices. It would be rare, but not impossible, that the police need to exercise their powers under new section 179C more than once.
We cannot foresee every difficulty that might arise for the courts, particularly around national holidays and when, for example, a justice who has undertaken to make himself available falls ill. If circumstances arose in which the police believed that the premises being open would constitute a danger to public safety--police judgment on danger to public safety underlies all those circumstances--it would be wrong if they could not act to deal with that danger by continuing the closure pending efforts by the courts to overcome their difficulties. I agree with the thrust of what is being said on amendments Nos. 90 and 91—that cases should be dealt with without the need for an extension and certainly not more than one—but we cannot exclude the possibility that it may be necessary.
I understand the anxiety of the licensed trade that the police might use their powers to extend closure orders repeatedly without court involvement, and I have discussed that on several occasions with people in the trade, but I simply do not accept that that will happen. The tests that the senior police officer must meet under new section 179C do not represent a simple hurdle and the duties on the police and the justices will ensure that the matter proceeds speedily to a resolution. However, it is not reasonable to exclude the possibility of exceptional circumstances such as holidays, illness and so on. I urge the Committee to resist amendments Nos. 90 and 91.
Given the potential dangers and the amount of money involved when premises are closed for one day--it is obviously twice as much if they are closed for two days--does the Minister agree that some finality is necessary? He may not agree that 48 hours is appropriate, but is he prepared to consider a mechanism to ensure that it is not open-ended, as it is at present, and that there is some pressure to achieve finality?
The hon. Gentleman accepts that it might be foolhardy simply to state in the amendment that one extension is enough, and by the same token, I cannot accept his fundamental point. If we are not careful, we might set up a process on a narrow point and use a sledgehammer to crack a very small nut. The central point is public safety, and if there were a real risk of justices being unable to make a judgment for a long time and that new section 179B(1) and (2) would be flouted, I would accept what he says, but we are discussing exceptional circumstances, and to create a specific process to deal with such circumstances would be using a sledgehammer to crack a nut.
My understanding is that, in emergencies, magistrates are always ready, as are judges, to sit during the night and at weekends. Indeed, the police sometimes request them to sit or visit them at home to obtain a warrant and so on. I cannot envisage circumstances in which it would not be possible for a court to determine the matter within 48 hours. I therefore ask the Minister to think again.
The hon. Gentleman, in his way, is making my point for me. I agree that the matter will be addressed by the way in which magistrates courts operate in such circumstances. However, including a specific time period would not help to resolve the situation. The hon. Gentleman may disagree—in which case he must decide what to do—but I do not think that the problem will arise.
Amendment No. 93 would require the police to extend closure orders under the terms of new section 179C at least eight hours before the end of the original period of closure. That is an unnecessary constraint. The purpose of new section 179C is to provide for extensions only where the necessary conditions in subsection (2) are met and the relevant justices will be unable to hear the matter within the period of the original order. It requires the police to reassess the situation within the period of the original order. That is in the interests of the licensed trade. No automatic extension is permitted—there must be an on-going threat to public safety if closure is to continue.
The amendment would mean that if the police made a closure order at 10 pm on a Friday night and required the pub to be closed until noon the next day—a period of 14 hours, and not an unimaginable state of affairs—the senior police officer would need to know the likelihood of the court hearing the matter before 4 am: that is, eight hours before noon. If by 3.45 am—15 minutes before the eight hours had expired—he could not be confident of the matter being heard before noon on Saturday, he would need to begin his reassessment. That is neither sensible nor desirable. It is preferable that the extension powers are used only where absolutely necessary, so that the matter is turned over to the courts at the first opportunity, without the need for further police intervention.
Another effect of the amendment would be that any closure order made for less than eight hours in the first instance could not be renewed. That would put police officers under unnecessary pressure to issue closure orders for more than eight hours in the first instance. For example, it may be desirable to close a pub from half-time in a local derby game—from, say, 8.15 pm to midnight—to deal with the situation there and then, but if the eight-hour requirement applied, the police would be under pressure to enforce a 24-hour closure and move it much further forward, which would not be in the interests of the licensing industry.
I hope that the hon. Member for North-East Hertfordshire will, on consideration, withdraw the amendment.
I am not certain that I should, although I am prepared to find out whether the Minister will help us a little more.
The hon. Member for Southwark, North and Bermondsey is correct to say that nowadays courts do not work on the basis that they once did, when there had to be long delays before matters came to court. Courts are prepared to act swiftly. I am concerned that the Minister is not prepared to give any ground on the matter. Forty-eight hours is a long enough period to wait before the matter comes before a magistrate. I cannot envisage any circumstances, especially now that we have large amalgamated benches—
The licensee should make sure that he is there. The Minister will have noticed that my proposal was not over-generous to licensees—I said that they should have three hours' notice to attend. I am not saying that what is sauce for the goose should not be sauce for the gander. Forty-eight hours is a considerable period in our modern world of communications, when one can send messages around the globe in seconds. Magistrates are much more available than they used to be, and the Minister and his colleagues are in a position to ensure that they are available in such circumstances.
I believe that magistrates would be able to meet the 48-hour requirement. If the Minister had some evidence that they could not—because the Lord Chancellor's Department had told him so or the police had said to him, ``We couldn't manage it in 48 hours''—he would have a point. However, he is not claiming that, and nor is he claiming that, for example, the Magistrates Association, the Association of Chief Police Officers or the Police Federation have expressed concerns.
I am not saying any of those things. I am simply asking what the hon. Gentleman thinks should happen if, on securing the limit, a public safety problem arises for whatever reason.
The Minister laughs, but it is he who is in government and who has the power to ensure that the provisions will apply and will work. That is what being a Minister is about. It is about delivering, not spinning and spending all one's time projecting an image. However, having thought about the matter I will return to it on Report, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn
It is a delight, Mr. Gale, to return to your chairmanship after such an engaging and interesting series of votes.
The amendments would give the Crown court, when seized of an appeal against a decision to revoke a licence, the discretion to order that the relevant licensed premises, closed under the terms of new section 179E(7), may reopen subject to any conditions it thinks fit; and the amendments make consequential changes to other parts of the Bill that flow from the creation of that discretion.
Amendment No. 115 would add to the existing offences by creating the offence of permitting the opening of relevant premises in contravention of the requirements of new subsection 179E(7). That is the purpose of the Bill.
The Government propose the amendments to ensure that the system of closing disorderly or excessively noisy licensed premises is fair and just at all stages, and that the courts are properly empowered to provide a just outcome. We are aware that appeals to the Crown court in licensing matters can be protected, and that the court must be able during that time to exercise discretion to open the premises if it is appropriate. It is important for the scheme of offences fully to support the proposal that once the police have initiated action by making a closure order, the premises should not reopen unless the police withdraw their order or the court authorises reopening. Any attempt to open premises in deliberate defiance of the law should be punished. They are straightforward technical amendments.
We believe that they are sensible amendments. We shall not oppose them.
Amendment agreed to.
Amendment made: No. 115, in page 14, line 22, at end insert—
`(7A) A person who, without reasonable excuse, permits premises to be open in contravention of subsection (7) of this section shall be guilty of an offence and shall be liable to a fine not exceeding £20,000 or to imprisonment for a term not exceeding three months or to both.'.—[Mr. Charles Clarke.]
These are technical amendments.
Amendment agreed to.
Amendments made: No. 117, in page 15, line 13, leave out `clerk' and insert `chief executive'.
No. 118, in page 15, line 23, leave out
`and subject to section 179E(7) of this Act'.
No. 119, in page 15, line 27, at end insert—
(a) the holder of a justices' licence gives notice of appeal against a decision under section 179E of this Act by licensing justices to revoke the licence; and
(b) the premises are closed by virtue of section 179E(7) of this Act;
The amendments deal with a straightforward issue. At present, anyone who refuses to leave licensed premises following a closure order will have committed an offence. The amendment would allow him a reasonable excuse—for example, the licensee may be tending an injured person. It would not open up huge exceptions to the offence, but it would allow for various circumstances that might arise. I should be interested to hear the Minister's views on whether there is a need for what he would call a certain flexibility.
Amendment No. 48 deals with the offence of refusing to leave licensed premises when requested to do so. Subject to a point that I made about amendment No. 46, we think that it is quite serious if an individual refuses to leave premises when there is a threat of disruption, disorder and perhaps violence. We would like to increase the penalty from level 1 to level 3 to reflect the fact that we must stamp down hard on the violent and disruptive behaviour at which the provision has always been aimed.
First, I am sure that the Committee will welcome with open arms—I am surprised that its members did not stand and applaud—the hon. Gentleman's conversion to a flexible approach to the relevant matters. It was a fine commitment, and I appreciated such a damascene conversion.
The offence in proposed new section 179H(2) of the Licensing Act 1964 would be committed by customers in on-licensed premises who refused a request from the licensee or manager to leave the premises when a closure order, made by the police or the courts, had come into effect. Amendment No. 46 suggests that the customer or any other person should be able to escape liability for that offence if he or she has a reasonable excuse to refuse to leave the premises. We do not believe that that is necessary or appropriate. In practice, it is difficult to imagine circumstances to justify it.
In exceptional circumstances in which there is a genuine reason why a person has a reasonable excuse to remain, it is almost inconceivable that that person will face criminal proceedings, let alone be convicted. The Crown Prosecution Service will not prosecute if doing so is not in the public interest. Moreover, the amendment would cast unwelcome doubt on the existing law. If it were made, the offence in proposed new section 179H(2) of the 1964 Act would differ from the equivalent offence in section 174(2), under which it is an offence for a drunken, violent, quarrelsome or disorderly person to remain on licensed premises when requested to leave. The purpose of the provision is to reinforce the authority of the licensee, especially in relation to closure orders. There would be no justification for such a distinction, and it would throw doubt on whether people could be convicted under section 174, even if they had a reasonable excuse.
The second amendment deals with the penalty. The proposed maximum penalty for the new offence under proposed new section 179H(2) in the 1964 Act has been set as a level 1 fine, which currently stands at £200. The proposal is to increase that to level 3. We believe that the low level appropriately reflects the relatively minor nature of the offence, which would apply to customers or other people who refused to leave licensed premises subject to a closure order when asked to do so by a person in charge of the premises.
It may help the hon. Gentleman to know that a level 1 penalty also applies to the similar offence under section 174 of the 1964 Act of failing to leave licensed premises when asked to do so by the licensee or a constable. That comparison is the reason why we have gone for a level 1 offence, rather than the level 3 offence set out in amendment No. 48.
The Minister is right to say that the old law makes such provisions. However, is it right to do so? Circumstances have changed since 1964. The hon. Gentleman, like us, is concerned about violence in public houses, and it is necessary to be able to empower the landlord to deal with it. Many of the provisions that we have discussed will cause difficulty for landlords. Is it not right to give them the tools that they need to do the job? One such tool would be the knowledge that a serious offence provision backed them up in cases in which they asked someone to leave. Is that not the other side of the coin from the other provisions, which are too widely drawn and rather unfair to landlords? A provision such as that in the amendment could help them.
There is a contradiction between the thrust of the two amendments on the issue, but I acknowledge that the hon. Gentleman has tabled them in a probing way to provoke this important debate. Amendment No. 46 would not help landlords to deal with difficult situations. I understand his point about tougher powers, but it would be a mistake to make a distinction between sanctions under the Bill with a level 1 penalty and those under section 174 of the 1964 Act, which also imposes a level 1 penalty for failing to leave licensed premises when asked to do so by the licensee or a constable. I understand the argument that both should be set at level 3, and the argument that both should be set at level 1, but it would be a mistake to have a differential between those offences—level 1 in one case and level 3 in the other.
There are always arguments to be had on the matter, but we decided on level 1 so as not to cause a divergence from section 174 of the Licensing Act 1964. The hon. Gentleman's point that the matter must be given serious consideration is reasonable, and I can give him a commitment that when we consider the legislation that follows the licensing White Paper, when we will review the whole process of licensing, we will be prepared specifically to review the appropriate level of fine for offences of this kind. That might help him to withdraw his amendment.
I do not know whether the Minister has noticed that amendment No. 110, which is further down in the order of consideration, under clause 34, is an attempt to be consistent. Before we reach our consideration of clause 34—assuming that we do not reach it immediately—the Minister may want to contemplate whether he accepts the principle of both amendments. I do not think that I am being inconsistent.
I hope that we will reach clause 34 by 9 pm this evening. If we do, and I know that the Opposition will try to assist us in attaining that, I will consider the hon. Gentleman's point. It is a matter of consistency and judgment. One should opt for setting both fines at level 1, or both at level 3. The hon. Gentleman is entitled to make his point about amendment No. 110, but we are in favour of sticking with level 1, and that is our judgment. I hope that, on that basis, he will withdraw the amendment.
Will the Minister reflect on the good sense of putting the phrase ``without reasonable excuse'' in the provision? I should like him to consider the scenario in which somebody will be asked to leave premises. Premises might be closed because disorder had occurred. There might be a woman or a young or old person who was frightened to leave those premises. The landlord would be under a lot of pressure to make such people leave, because if he did not achieve that, he would be likely to be fined. There would be genuine tension and difficulty on both sides. The Minister referred to the Crown Prosecution Service—
The example of which I was thinking, and which I decided not to talk about, was that of a doctor in a pub who was asked to leave, but who needed to be there because of some particular medical circumstance, which would obviously be a reasonable excuse. That is rather different, but not completely dissimilar to the case that the right hon. and learned Gentleman raises. Although there are no circumstances in which this would become a real issue, I am prepared to consider the right hon. and learned Gentleman's point, and to consider whether we could define the provision more tightly. I am sceptical as to whether we could do that, but if it would help him, I am prepared to consider it.
Amendment, by leave, withdrawn.
Amendments made: No. 120, in page 15, line 46, after `concerned' insert—
`(or with any extension of a closure order or with section 179E(7) of this Act)'.
No. 121, in page 16, line 33, after `(6)' insert `or 179E(7A)'.—[Mr. Charles Clarke.]
Amendment No. 96 refers to the situation when a closure order has been made and it would allow a landlord to serve or supply food and drink to his close personal friends. Many landlords live on the premises, where their close personal friends and family would visit them. I accept that that should not be used as a coach and horses to break the closure, but it is only reasonable that a landlord should be able to go about his normal activities. This reflects the practical realities of closure: it would be unreasonable for a landlord who was appealing against a closure order--it might take several months for the appeal to be heard in the Crown court--to have a friend in for a cup of coffee.
I want to speak briefly to amendment No. 96. I have often been at a disadvantage in the Committee because I am not a lawyer, but I can now declare that I am the daughter of a publican, which is why I have sometimes remained quiet. I assure the hon. Member for North-East Hertfordshire from my personal experience that, when one becomes a publican, one's circle of close personal friends increases exponentially. I accept that the purpose of his amendment is not be to drive a coach and horses through the legislation, but in practice it would do so.It is possible to define objectively a member of one's family, and that can be easily tested, but it is impossible to define a close personal friend. I cannot support that amendment.
I have nothing further to say and I rest my case on the comments made by the hon. Member for Taunton (Jackie Ballard).
The police must be able to effect closures and allowing personal friends on to premises would produce major disputes on interpretation--I am speaking from a brief, but the hon. Lady spoke from personal experience--and it would be difficult for the police to determine whether premises were opening in contravention of the law.
I am sympathetic to the general point, but the good sense of the police should guide how the matter is dealt with. I can help by assuring the Committee that guidance will be given to the police on how the provision should operate, but the hon. Lady made the point more powerfully than I could have done.
Amendment No. 94 would redefine ``manager'' in new section 179K as the person with the authority to open closed licensed premises rather than just a person with authority to close them. The amendment is unnecessary and would not help to deal with the circumstances, so I hope that the hon. Gentleman will not press amendments Nos. 94 and 96.
``person who works in relevant licensed premises in a capacity which gives him authority to'' open and
``close the premises''.
The clause currently refers only to
``authority to close the premises''.
The term is used in clause 19 where a requirement is placed on the person or persons working in the pub or club to close it. Licensed premises are legitimate business concerns and while a licence is in force and no closure order or extension of it exists they may open within the permitted hours set out in the Licensing Act 1964. The only authority relevant to clause 19 is the authority to close the premises--we are discussing closure orders, not opening orders--making that person the appropriate person on whom to serve closure orders. It is unnecessary to redefine ``manager'' as suggested in the amendment.
The point is that we want to ensure that notification of the beginning or end of a closure order is given to someone of sufficient authority. Clearly, ``manager'' can mean many things and the point on which I seek assurance is that the person concerned should be someone with sufficient authority to open and close the premises--in effect, the person in charge of the keys.
I think that I can give that assurance. The reason it is defined in terms of closure is that the whole of this debate is about closing premises in certain circumstances. The hon. Gentleman is right to say that premises need to be opened and closed in certain circumstances. The phrase in the Bill deals with his point, and I hope that he will respond constructively.
I beg to move amendment No. 95, in page 17, line 8, leave out
``not less than fourteen days''.
The amendment deals with the issue of delay before justices consider the question of the licence itself. Because of the nature of the Licensing Act 1964, and the procedures within it, a built-in delay of an extra 14 days could lead to premises remaining closed for up to two months before their licence was reviewed by the licensing Bench. That is disproportionate. If the 14-day provision is supposed to allow licensees time to prepare for the hearing, they should have the option of whether to choose it, given the massive cost of a prolonged closure. The Brewers and Licensed Retailers Association is concerned that undue prolonged closure could create additional pressures on other licensed premises in the area. Public safety would be compromised if the people who usually visit the closed premises were dispersed to other outlets, which might lead to overcrowding. The question is whether a period of 14 days at the beginning is too long to act as a trigger for the matter to be referred to the licensing Bench.
The fact is that there is a competing concern—on the one hand, there is a need to resolve the matter and reopen the premises, and on the other, a need to prepare an adequate defence. We concluded that there should be a gap of at least 14 days between the two hearings. We do not think that the gap should be reduced. It is important, in the interests of human rights, that the licensee has adequate time to prepare a defence against revocation before it is considered by the licensing justices. The process suggested in the amendment would not guarantee the necessary time to prepare a defence. However, I concede that it would have the effect of resolving the matter more quickly.
There is a balance of judgment in relation to the need to resolve the matter rapidly and the need to ensure that the licensee has adequate time, in statute, to prepare his defence. Our view is that a 14-day period is right. I can see why one might argue that a seven-day period was right. However, our fundamental concern is for the interests of the licensee, which the hon. Gentleman has advocated powerfully throughout this Committee. It is important that the licensee, whose livelihood is threatened, should have a proper chance to prepare his defence effectively.
On the basis that the amendment may be withdrawn at this stage, would the Minister consider whether the licensee might be given the option of having the matter come before the licensing session, which is subject to a shorter period than 14 days? I do not think that that would create human rights concerns, as it would be up to the individual whether to choose it. In those circumstances, at least, an opportunity would be provided to cut some of the huge costs. If a closure cost from £1,100 to £60,000, that could mount up to substantial sums. If the licensee and his lawyers consider that they have their tackle in order and are ready to go with the hearing, should they not be given the option to do so?
I am certainly willing to consider whether we can offer flexibility along the lines suggested by the hon. Gentleman. I understand his argument in that he is trying to give the whip hand to the licensees whereby they can say, ``If we are ready to go, we are ready to go. Let us do it as rapidly as possible.'' I understand the merit in that. I will need to take advice on the feasibility of such action in terms of the legislation that could be considered. I am willing to consider the matter, however, to see whether anything further can be done.
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.
Question agreed to.
Clause 19, as amended, ordered to stand part of the Bill.
Clause 20 ordered to stand part of the Bill.