Clause 134 - Unauthorised licensable activities

Licensing Bill [Lords] – in a Public Bill Committee at 4:00 pm on 13th May 2003.

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Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight 4:00 pm, 13th May 2003

I beg to move amendment No. 441, in

clause 134, page 73, line 29, at beginning insert

'Save as provided in subsection (2A),'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments:

No. 434, in

clause 134, page 73, line 34, leave out subsections (2) and (3).

No. 442, in

clause 134, page 74, line 5, at end insert—

'(2A) No offence shall be committed where the licensable activity is of minimal duration or impact on the local community.'.

No. 435, in

clause 134, page 74, line 6, at end insert—

'(3A) Where the licensable activity in question is the retail of alcohol, a person does not commit an offence under this section if his only involvement is to consume alcohol sold on the premises.'.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

The amendments test the Minister's convictions—not the convictions of which we spoke earlier, but his confidence in the convictions that he expressed at our proceedings last Thursday afternoon, when we were talking about morris dancers. The hon. Gentleman said at one point, referring to performances that take place in public at the sides of roads and so on:

''Such activities are not licensable. They will not be affected.''—[Official Report, Standing Committee D, 8 May 2003; c. 443.]

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I will indeed, but I was about to qualify what I was saying. To be fair, the Minister then was careful to say that the onus would be on the local authority. Later in the debate, at the point at which I accused him of drifting back towards his brief, he said:

''There is nothing to stop the local authority from licensing large stretches of public space such as streets, roads or greens, so that entertainment can be performed there.''—[Official Report, Standing Committee D, 8 May 2003; c. 447.]

He then went on a bit along those lines. At the time, I was left with the impression that it depended on the common sense of the licensing authority and that the hon. Gentleman was relying on licensing authorities to exercise common sense. I hope that that is not an unfair representation of what he said.

However, the problem is when something turns into a crime. As far as I know, it is not only the licensing authority that is able to bring a prosecution for an offence under this legislation. Therefore, the licensing authority may hold a common-sense view of the activity but someone else—who has not read the whole of the Minister's contribution to the debate on Thursday afternoon—may take a different view. For example, they may report the morris dancers to the police and tell them that they have committed a crime. The police will examine section 134, which is what this clause will become when the legislation reaches the statute book, and they will say, ''Well, yes, I am sorry but the morris dancers have committed a crime,'' because they have carried on or attempted to carry on

''a licensable activity on or from any premises''

—the village green, in this case—and they have done so

''otherwise than under and in accordance with an authorisation,''

as they did not have a licence. If the local authority had knowingly allowed them to carry on dancing without a licence, it would also have committed a crime. [Interruption.]

The hon. Member for South Dorset (Jim Knight) talks about the spontaneity of morris dancing. If a local authority official appears in the middle of a dance, and although he did not know in advance that the dance was going to take place, he now realises that it is taking place, he has a duty to stop the dancing; otherwise he would be knowingly allowing a licensable activity to be carried on. I am glad that the hon. Gentleman gave me the opportunity to consider that example.

I do not want any confusion about this—[Interruption]—and I can see that the hon. Member for Torbay (Mr. Sanders) does not want any either.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

It is clear that there is a lot of morris dancing in Torbay.

The amendment makes the situation absolutely clear, and it is also in line with the Minister's wishes as expressed on Thursday. It simply states:

''No offence shall be committed where the licensable activity is of minimal duration or impact on the local community.''

I am sure that that will make it crystal clear to the police that they are not expected to take too seriously an allegation that a local authority has neglected its duties by not bringing a prosecution, or by not preventing a licensable activity from continuing, in those circumstances. With that, I conclude my argument.

Sitting suspended for a Division in the House.

On resuming—

Photo of Mark Hoban Mark Hoban Opposition Whip (Commons) 4:45 pm, 13th May 2003

Amendments Nos. 434 and 435 would delete subsections (2) and (3) from the clause. They are probing amendments to help us to understand the rationale behind the two subsections. Under subsection (2), if a person performs in a play, takes part in an indoor sporting event, boxes or wrestles, performs live music or plays recorded music or something similar, and those activities have not been licensed, he can be exempt from being found guilty of an offence of unauthorised licensable activity.

The defence, which is provided by subsection (1), is that of due diligence, whereby a person has taken reasonable steps to assure himself that the event has been properly licensed in accordance with the Bill. I should have thought that that would be sufficient to cover sensible participants in boxing matches, wrestling, indoor sports and so on. Why have the Government chosen to go one step further to say that

even if people have not taken sensible measures to check whether the activity in which they are participating has been licensed, participation in the activity still does not give rise to an offence? I suspect that the topic was discussed in another place, and it would be useful for members of the Committee if the reasons underlying subsection (2) were put on the record.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport

Amendments Nos. 441 and 442 would amend the Bill so that no offence would be committed when the licensable activity for which no authorisation was in place was of

''minimal duration or impact on the local community.''

The amendments would be completely unworkable. They would offer the opportunity for people to ride roughshod over the licensing laws in the hope that they could persuade people, after the fact, that there was nothing to worry about. Their effect would be a little like saying that it should be legal for people to drive their cars at 100 mph for 20 minutes, so long as they had not killed anyone.

Who is to decide on the duration or impact of the licensable activity? We must not forget that what may seem reasonable to some may be a serious nuisance to others. The amendments would risk allowing any old Tom, Dick or Harry to set up a bar on the street, sell a large amount of alcohol for an hour—generating a significant profit and giving rise to all sorts of problems of crime and disorder—and then claim afterwards that because he had sold alcohol for only an hour, the activity was of minimal duration and he was not committing an offence. That is clearly absurd. It would be a serious anomaly, and I hope that the hon. Member for Isle of Wight will withdraw his amendment.

I shall move on to amendment No. 434. The Government are absolutely committed to providing a regulatory environment within which entertainment can thrive. The Bill is a key tool to help us achieve that aim. However, we have brought forward a range of concessions designed to deal with the worries raised by many performers. My tables were aching with piles of correspondence on such matters. All members of the Committee are only too familiar with the themes. One of those concessions was to make it clear in the Bill that entertainers would not be committing an offence if they simply took part in the provision of regulated entertainment, unless they had also had a hand in the organisation of that provision, in which case they would be responsible. Amendment No. 434 would reverse that concession. I hope that the hon. Gentleman will not press it, because if he does our postbags will be once again straining with letters.

Amendment No. 435 is designed to make it clear that

''Where the licensable activity in question is the retail of alcohol, a person does not commit an offence under this section if his only involvement is to consume alcohol sold on the premises.''

I hope that I can put the minds of Opposition Members at rest. The consumption of alcohol is not a licensable activity. No offence will have been committed if individuals consume alcohol that has been sold to them by retail without suitable

authorisation. The amendment is therefore unnecessary, and I hope that it will not be pressed either.

The hon. Gentleman asked who would bring prosecutions. I have written down in front of me ''prosecution/common sense''. Proceedings for any offence under the Bill may be instigated by a licensing authority, the Director of Public Prosecutions or, in rare circumstances, the local weights and measures authority. Despite the nightmare scenarios painted by the hon. Gentleman, I am confident that all of those bodies and authorities can be relied on to exercise good common sense in the public interest.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

I am mildly comforted to learn that prosecutions can be brought only by the licensing authority, the DPP or the local weights and measures authority. I understand the problem of interpreting the phrase ''minimal duration or impact''. I am not sure that an hour counts as minimal, and certainly the courts would have no difficulty in reaching the interpretation that an hour that gave rise to all sorts of crime and disorder problems was of more than minimal impact. I also understand the difficulties that the Minister faces in accepting my amendment, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 134 ordered to stand part of the Bill.