(13 years, 4 months ago)
Lords ChamberMy Lords, the purpose of my amendment is to amend Section 329 of the Criminal Justice Act 2003 to exclude civil proceedings against the police for trespass against the person occasioned during an arrest. Section 329 was designed to cover a situation where an individual harms another while that other is attempting to commit a crime against the individual. It was enacted in response to the case of Tony Martin, who shot two intruders to his home who he thought were attempting a burglary. Section 329 provides that the court must give permission for an offender to bring a civil suit for an assault committed at the time and in the circumstances that the offender committed the act for which he was convicted. There was a great deal of public disquiet that a person engaged in burglary should be able to sue the householder who had injured him.
Under Section 329 of the Criminal Justice Act 2003, the defendant has a defence to proceedings brought by the injured offender if he believed that the offender was about to commit an offence, was in the course of committing an offence or had committed an offence and that the defendant’s actions were necessary to defend himself or another person, protect or recover property, prevent or stop the offence or catch or secure the conviction of the offender, but only if his action was not grossly disproportionate. In other words, it was designed to protect the householder who reacted instinctively against an intruder into his home and injured that person, so that no suit could lie in the civil courts unless the force used was completely disproportionate. Unfortunately, it appears that only the police have taken advantage of Section 329 when they injure an individual in the course of arresting him.
To cite the judgment in Anthony Adorian v Commissioner of Police of the Metropolis—2009, EWCA Civ 18, paragraph 7—the standard historically set for police action and
“painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country”,
is that,
“an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary”.
When a police officer arrests an individual, he may, in the historic development of the common law, use no more force than is reasonable. That was replaced by Section 329 which requires only that the police do not use “grossly disproportionate” force in arresting and that arrests are not in bad faith, even though they may be entirely unreasonable. In the Adorian case, Anthony Adorian suffered injuries in being arrested which were so severe that the force medical examiner concluded that he was unfit to be detained. His class of injury is associated with head-on car crashes or falls from a significant height, but the claimant, Adorian, had been walking at the moment of arrest and, as the judge said in his decision,
“there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries”.
When Section 329 was debated in the course of the passage of the 2003 Act, the noble and learned Baroness, Lady Scotland of Asthal, introducing it, said that it,
“would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders”,
and that it,
“benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal”.—[Official Report, 11/11/03; cols. 1307-8.].
There was no mention during the introduction of Section 329 in 2003 of the police. Nothing was said about the police.
Lord Justice Sedley, giving the judgment in the Adorian case to which I referred, said:
“Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect”.
Nobody thought that Section 329 would be used by police who had used unreasonable force in effecting the arrest of an individual. So there is a mismatch between criminal and civil proceedings as far as the police are concerned. It is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable, it was not grossly excessive. That is on the criminal side. But if the same person who had been arrested unreasonably by the police tried to sue them for civil trespass to the person, the police could and do rely on Section 329 and will succeed unless the claimant shows not that their actions were unreasonable—that an unreasonable amount of force had been used—but that that their actions were grossly disproportionate. In other words, a test to be applied for the householder defending himself against intruders has only been utilised, as far as research can pinpoint it, by the police to defend themselves against civil cases.
My Lords, I can be very brief and start by saying how grateful the House should be to the noble Lord, Lord Thomas of Gresford, for explaining this amendment so clearly. We support the amendment. It seems sensible; and it seems equally sensible for the Government, when a sensible amendment is put before them, to react favourably. It would cost them nothing to accept the amendment and would put right something that has been slightly wrong in this section of the 2003 Act. As the noble Lord said, this is a classic example of unintended consequences. His analysis of the law seems to us to be correct and it would be sensible for the Government to accept the amendment.
I am grateful to the noble Baroness, Lady Browning, for having sent a letter to all interested parties on 24 June, included in which is a part that addresses this particular issue. She argued that no formal consultation had taken place between the police and the Government although there had been some informal consultation. She suggested that the Government would not give way on this amendment but we will wait for the noble Lord, Lord Wallace, to answer for the Government. If the noble Lord, Lord Thomas of Gresford, were minded to push this extremely sensible amendment to a vote, we would support it.
My Lords, this amendment is near identical to one tabled by the noble Lord, Lord Lester, during Committee stage of this Bill, and to which we gave a fairly full response at the time, so I will be brief. We promised the noble Lord in my response at the time that we would give the matter further consideration. Having done so, I am afraid that the advice we have received is that we remain unconvinced that we want to make an amendment that would make it easier for a convicted offender to sue the police for damages until we hear good answers to the questions and issues that I mentioned in Committee and which I will not repeat here.
We have looked at this again and take the view that the previous Government also took when the issue was raised in 2009. The House should be very clear that Section 329 does not give the police carte blanche to use disproportionate force. They are still subject to the criminal law which permits only reasonable force. All that Section 329 does is raise the bar by making it more difficult for criminals to get financial benefit from situations where they were the ones committing an imprisonable offence. It is reasonable and fair to treat a person who holds the office of constable in the same way for these purposes as any other member of the public. We should not rush to the assumption that it is an unintended consequence for the police to enjoy the protection of Section 329. As I have suggested, the police will inevitably be the people most likely to be able to invoke Section 329, given that their job involves confronting people who are in the course of committing imprisonable offences. The text of Section 329 supports this since subsection (5) specifically extends the protection to people who believe their act was necessary to
“apprehend, or secure the conviction, of the claimant after he had committed an offence”.
I therefore remain unconvinced that an amendment to Section 329 of the 2003 Act in the way proposed by the noble Lord is the right way forward. I hope that after the reassurance that we have again considered this issue the noble Lord will feel able to withdraw his amendment.
I note that my noble friend Lord Lester raised this matter in the Policing and Crime Bill 2009, and that at that stage undertakings were given by the noble Lord, Lord Brett, on behalf of the then Government to consult the police on the unintended consequences. That was reiterated on Report, and in February of last year, the noble Lord, Lord Bach, said that consultation had not yet taken place, and it still has not taken place. I do not think that it is appropriate that this matter should be put on the shelf until we have another Bill into which it can be inserted. It is very important that the police should not be able to shelter behind a provision that clearly was not designed for them, as the noble Lord, Lord Bach, has just acknowledged. Consequently, I propose to test the opinion of the House.
My Lords, the government amendments to Schedule 14 correct a number of drafting errors that have come to light during the passage of the Bill. The changes are necessary in order to ensure that the changes to the existing police complaints legislation work properly. I assure noble Lords that in the main they are technical, drafting points that, for example, correct incorrect numbering and add consequential amendments that were missed. I realise that there are other amendments for debate in this group. I beg to move.
My Lords, I will speak to Amendment 256 in this group. Before doing so, I apologise to the House that I may be unable to stay until the end of the debate. I have to attend a special meeting of the Metropolitan Police Authority where the commissioner is coming to answer questions about the events surrounding the various police investigations into the News of the World.
The amendment relates to the handling of complaints against senior police officers in London.
I apologise to my noble friend Lady Doocey and I am most grateful to her for allowing me to intervene. This is the first time that I have heard a Member move their amendment and say that they might not be here at the end of the debate. Clearly, the Minister has to be in a position to respond to my noble friend. Perhaps she will consider her position and either continue and undertake to remain until the end of the debate on the amendment, or perhaps ask one of her very able colleagues to move the amendment on her behalf. I am concerned that we should not deviate from the normal practices of the House. I think that the noble Baroness, Lady Hamwee, may be about to offer her assistance.
I hope that I can reassure the House. In discussions with my noble friend, neither of us realised that we would reach this group quite so soon. My noble friend should be able to be here until well after we have got through this group—unless she is going to take an hour and a half, in which case there will be other problems.
I apologise to the House if I have got it wrong yet again and I thank my noble friend Lady Hamwee. My amendment relates to the handling of complaints against senior police officers in London. The Bill proposes that responsibility for complaints against senior ACPO officers—that is, officers below the rank of deputy commissioner—should be moved from the Metropolitan Police Authority to the Metropolitan Police Commissioner. My concern is not that this would make the commissioner responsible for employing, promoting and disciplining officers—I do not have a major problem with that—but that it would also make him responsible for sackings and, crucially, for hearing appeals against his own rulings. It would remove all the elements of independence and transparency that the Metropolitan Police Authority currently provides and would in effect make the commissioner judge, jury and executioner.
The proposals are deeply flawed because they concentrate too much power in the hands of the commissioner without any proper checks and balances. There is also no effective framework to safeguard impartiality. I am aware of the Government's response to the argument. They argue that it is commonplace for complaints to be decided within an organisation rather than by an external arbiter. However, this fails to appreciate that police officers are in a unique position. They are officers of the Crown who have the power to detain members of the public and to take away their freedom through arrest. Consequently, there is no valid analogy with how other organisations—even the Armed Forces—deal with complaints, conduct, dismissals and appeals. It is in the interest of the police that they should be able to demonstrate an independent element in the assessment of the seriousness and reputational risks of allegations made against their most senior ranks. The Bill envisages allowing appeals to the IPCC, but only at the end of the process. That is no substitute for an independent review of whether standards of conduct may have fallen below those that the outside world would recognise as proper.
Lack of independence also creates another problem. A very likely consequence of the new system is an increase in the number of complaints against the commissioner for failing properly to investigate complaints against ACPO officers under his command. If those making complaints against a senior officer feel that the issue has not been properly or sufficiently well dealt with in the first instance, they will almost certainly lodge a complaint against the chief officer. The whole rigmarole in turn creates an increased possibility of legal challenge.
I believe there is a more fundamental problem. In any closed institution, such as the police, it is common for custom and practice to become entrenched. An independent element is vital to provide a counterbalance and to ensure due process. It is worth considering the virtues of the current system for handling complaints. At present the Metropolitan Police Authority hears complaints through its professional standards cases sub-committee and there is a right of appeal to the Police Appeals Tribunal. This current system is not an accident of history. It evolved to address concerns about the perceived lack of independence and accountability in how complaints and conduct matters had been handled previously. Are we really confident that policing has matured sufficiently to deal with these concerns? The Government seem to be ignoring the lessons of the past and are therefore likely to repeat the errors of the past.
Since the Bill abolishes the Metropolitan Police Authority, the purpose of my amendment is to restore equivalent safeguards to the new arrangements. The amendment would, within London, make the Mayor’s Office for Policing and Crime the relevant appeals body. It is also essential that the Mayor’s Office for Policing and Crime has statutory access to all information and systems where complaints are recorded. Without this, the Mayor’s Office for Policing and Crime will be totally reliant on the commissioner advising it of complaint or conduct matters. It would also be unable to discharge the functions proposed in the Bill to ensure that chief constables have fulfilled their duty in the handling of such complaints. The Government’s proposals do no favours to the PCC. They expose him or her to accusations—unjustified, one would hope—of conflict of interest, bias and favouritism. This amendment would avoid these pitfalls without in any way affecting the proper authority of the PCC and the correct limits to his or her discretion. I therefore commend this amendment as a means of preserving the necessary elements of independence, transparency and impartiality. I beg to move.
I understand the thrust of the noble Baroness’s argument, but it is interesting that in her amendment she seems to be proposing that outside the Metropolitan Police area the chief constable still carries out that function. I wonder why she has not amended the situation outside London. The logic of what she is saying is that if it is the MOPC in relation to the Metropolitan Police area, it would presumably be the police and crime commissioner who would do the same thing in other areas. I should be grateful if she would clarify that point for me.
I can only plead ignorance and apologise. My amendment was meant specifically to deal with London and I do not think I was sufficiently good at checking that the final version of the amendment dealt just with London. I crave your Lordships’ indulgence.
I am very grateful to the noble Baroness for that. She has raised an important matter of principle and it will be interesting to see what response the Minister gives. If it were a sympathetic response, in which we had an opportunity at Third Reading to discuss this again, she might wish to look at the wording of the amendment. That depends on the Minister.
The principle that the noble Baroness has enunciated must be right. I hope she will pursue this. As for the government amendments, we, of course, welcome them.
My Lords, I have a query in relation to Amendment 245. A number of years ago, I was a member of the complaints committee of Northumbria Police Authority. I well remember being advised that every complaint that was written down was provided to the committee to see, whether or not it was regarded as spurious and whether or not action had been taken or was going to be taken. We were given all the original correspondence and a summary of the action that had been or would be taken. That system seemed to work well.
However, I would appreciate the Minister’s clarification on a point in the Bill. Paragraph 8(2) of Schedule 14 to the Bill substitutes paragraph 2(1) of Schedule 3 to the Police Reform Act 2002 with a new sub-paragraph which states:
“Where a complaint is made to the Commission, it shall give notification of the complaint to the appropriate authority”.
So far, so good, but it then states:
“But the Commission need not give that notification if the Commission considers that there are exceptional circumstances that justify its not being given”.
It is not clear to me, but it may be made clear by regulations or other means, what the definition of “exceptional circumstances” is. Years ago, I was in a position where every complaint was written down and was provided to the complaints committee. We need to be reassured that a structure is not being created whereby complaints made are simply not acted upon because there are deemed to be exceptional circumstances that justify there being no further progress on them.
My noble friend’s amendment would mean that the responsibility for dealing with appeals in relation to low-level complaints against the Metropolitan Police would be handled by the Mayor's Office for Policing and Crime rather than the responsibility resting with the Commissioner of the Metropolitan Police. While the Government recognise that giving the Mayor's Office for Policing and Crime responsibility for dealing with appeals against the handling of low-level complaints is one way of providing some independent scrutiny of such matters, we are not persuaded that the duty to consider individual appeals should rest with the Mayor's Office for Policing and Crime.
It is commonplace for complaints to be decided—as the noble Baroness said, because I think she has heard me say this before—within an organisation rather than by an external arbiter. In practice, the chief officer will not be hearing an appeal against his own decision. The duties will be delegated so that, for example, the initial decision is taken by the line manager of the officer complained against and the appeal is conducted by the professional standards directorate. A complainant who feels that an appeal has not been properly considered will have further routes of redress, first to the Mayor's Office for Policing and Crime, which can direct the chief officer to look again at the matter, and secondly to the courts if the decision is irrational or unfair.
The Government consider that these safeguards are sufficient and achieve the same effect as this amendment suggests. Further, we are concerned that giving the Mayor's Office for Policing and Crime responsibility for hearing all low-level complaints against the Metropolitan Police would place a significant burden on the office and distract it from its core duties of securing the maintenance of an efficient and effective force and holding the commissioner to account for the exercise of his or her functions.
As a final point, the amendment would mean, as the noble Lord, Lord Hunt, has already identified to my noble friend, that the police complaints regime would operate differently in London from the rest of England and Wales where low-level appeals would remain the responsibility of the chief constable.
With regard to the interpretation of “exceptional circumstances” raised by my noble friend Lord Shipley, rather than giving a detailed explanation off the top of my head, I will take advice and write to him about it. I hope that will be of help to the House. On this basis, I hope that my noble friend will not press her amendment.
My Lords, what a marathon. I wish to move Amendment 304A and speak to Amendments 304B and 304C. I return without apology to the subject of “appropriate” versus “necessary”. The Bill reduces the evidence test for the attachment of licence conditions so that these are “appropriate” rather than “necessary”. These amendments would delete these provisions from the Bill and retain the “necessary” test. In Committee, the noble Viscount, Lord Astor, set out extremely well the need for these amendments and the significance of the change from “necessary” to “appropriate”. I am sorry that he is unable to be with us today.
Review proceedings are quasi-judicial and designed to deal with infringements of the licensing regime, and have a wide range of penalties that are available to be deployed against the premises in question, from the imposition of new conditions restricting the operation of the premises to the suspension or even withdrawal of a licence. Licensing authorities are already able to impose conditions that they and other responsible bodies need in order to promote the licensing objectives without difficulty. In Committee, my noble friend the Minister claimed that “necessary” places a significant evidential burden on licensing authorities.
There is no evidence to suggest that local authorities find the evidential burden too restrictive and plenty of evidence from across the country to suggest that it is not a barrier to imposing tough trading conditions. For those that have experienced difficulties with a lack of representations being made by responsible authorities about problem premises, the Bill makes local authorities responsible authorities. This means that they will be able to tackle problem premises in their own right, not just rely on evidence supplied by other responsible authorities. The licensed trade asserts that the current “necessary” test has worked well and has ensured that conditions attached to licences are fair and address specific concerns, as opposed to being unfair and disproportionate. Where is the evidence to the contrary?
I understand from the Home Office that the plain English meaning of “appropriate” is “suitable”. That seems far too subjective. How about “convenient” on that basis? In these circumstances, the substitution of “necessary” for “appropriate” would allow decisions to be taken on the grounds of, for example, political expediency or subjective judgment. My noble friend the Minister may say I am wrong and that this will not be the case, but how equipped will licensing authorities be to adopt the correct interpretation of “appropriate”? It has been confirmed that the Local Government Association has concerns in this respect. The fact that “appropriate” is not clearly defined in law, unlike “necessary”, on which there is considerable case law, increases the likelihood of legal challenge and appeal.
“Necessary” is also a key component of the test of proportionality under the European Convention on Human Rights. I have given the Minister and her colleagues a copy of the analysis done by the licensed trade into the impact of the convention, and your Lordships will be glad to hear that I will not go into enormous detail at this stage. Article 1 of Protocol 1 of the ECHR provides for the “peaceful enjoyment” of possessions and states clearly that:
“No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law”.
The state can enforce such law,
“as it deems necessary to control the use of property”,
for the public interest.
The Explanatory Memorandum to the Bill makes clear the importance of the “necessary” test to ECHR compliance in respect of licensing. It acknowledges that an alcohol licence is a possession and is protected under the convention. The imposition of a restriction on a pre-existing permission or the removal of it without clear evidence of harm or irresponsible practice will in some cases amount to interference in the right to peaceful enjoyment of possessions. There is no analysis in the Explanatory Notes of what the reduction in this evidence burden would mean for compliance. The existing “necessary” test clearly helps to ensure a fair balance between public and rights-holder interests. How will the “appropriate” test do that?
My Lords, I joined in the debate on these two terms at the previous stage, and on rereading Hansard I wonder now even more than I did at the time how assessing whether something is appropriate could be evidence-based. If I were still a councillor having to decide whether a condition is appropriate, I do not think I could avoid it being a subjective judgment. My noble friend has referred to this. I also asked at the last stage whether the assessment had to be reasonable. If it is “appropriate” rather than “necessary”, I assume that it would have to be, but the Minister very elegantly sidestepped that question. I do not blame her because I had not given her notice of it.
My final point refers to the statutory guidance, again just mentioned by my noble friend. We are not talking about a particular application, but licensing in general is a quasi-judicial activity. Perhaps this is not strictly quasi-judicial, but it comes quite close to it. I am concerned about the need to rely on guidance as distinct from primary legislation in the way this is approached.
My Lords, my noble friend Lord Clement-Jones and the Minister will recall that I spoke on this matter in Committee. I have no intention of running the risk of prolonging the debate by repeating what I said on that occasion, but nothing that has happened since the previous stage alters in any way the views I then expressed. The only thing I would say in a wholly friendly manner to my noble friend Lord Clement-Jones is that I used the human rights argument on a series of occasions during our debates on the Licensing Bill in 2003. I have to say, in a manner which I hope he will not find too discouraging, that on every single occasion the Front Bench of the then Government shut me up and told me that I did not actually have a case to argue.
My Lords, I am a bit intimidated by the thought that I might have to defend not only the point that we are talking about today but the whole panoply of human rights law, but perhaps we can duck that for now. As has been mentioned already, we had a good discussion on these points in Committee and we do not need to go over them. What is disappointing is that, as has been said, we do not seem to have moved on since then. We felt that the Minister’s responses to the original discussion were a bit lacking in the sort of detail required to be convincing, but it would have helped if we had been able to have sight of the guidance she promised. The guidance has not appeared, and therefore we are not much further forward. I hope that the Minister will be able to help us today, but if the noble Lord, Lord Clement-Jones, wishes to seek further support from this Bench, we would certainly be there behind him in the Lobbies.
My Lords, for some reason we seem to be in a “vote early and vote often” mode today. These amendments seek to remove three clauses from the Bill that lower the evidential threshold that applies to decision-making by licensing authorities. The clauses replace the requirement that licensing authorities should take actions that are “necessary” with the requirement that their actions are “appropriate”. I do not want to engage the House too long on this debate because we would end up rehearsing all that was said in Committee, but I should say that I do not think that the word “convenient” is a substitute for “appropriate”, although I suspect that he was being rather tongue-in-cheek when he said that.
Lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of licensing objectives. The four licensing objectives will still apply. My noble friend Lady Hamwee suggested that I was not clear enough about this in Committee, so I reiterate that the four statutory licensing objectives still apply. However, lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of the licensing objectives.
I am most grateful to my noble friend Lord Clement-Jones for advising me in advance of his concerns. On the “necessary” test and the importance of it being compliant with human rights law, the statutory test of what is appropriate as the basis on which licensing authorities must make decisions—alongside clear guidance to those authorities as to what is meant by this threshold, and the availability of statutory rights of appeal for licensing applicants and others affected by licensing decisions—ensures that the ECHR rights of those affected by licensing decisions are safeguarded. My noble friend prayed in aid his experience of previous legislation in this area. The requirement that an interference with ECHR rights must be “necessary” is a concept that has been developed in the context of human rights law and is not directly comparable with the meaning of “necessary” as it currently appears in the Licensing Act 2003.
My noble friend suggested that the only right of appeal against licensing decisions, including the imposition of conditions, is judicial review. That is not correct. Section 181 of the Licensing Act 2003 already provides for a statutory right of appeal to the magistrates’ court against most decisions by licensing authorities, including decisions on the granting or revocation of a licence and the conditions attached.
I must also inform the House that although it has been suggested that the Local Government Association is against these proposed changes, that is not the Government’s understanding. Indeed, in response to our consultation on rebalancing the Licensing Act, the LG Group said that it “broadly welcomes this proposal”.
My Lords, I am grateful to the noble Baroness. I think I am more sympathetic to the Government’s word “appropriate” than to the suggested use of the word “necessary”. In the context of the Bill, both these words are actually subjective in terms of what is being looked at. I assume that the Government prefers “appropriate” because I would have thought that it would be easier to argue either for or against in court than “necessary” would be, because that word is rather different. Is that not the thinking behind the Government’s proposal? I understand the arguments, but the central issue seems to be that of appeal. It would be easier for a court to reach a decision on what is “appropriate” than on what is “necessary”. However, please tell me if I am wrong.
My Lords, I am not in a position to try to second-guess how a court would determine that, because we are talking hypothetically and not about a specific example. I will come on to an example which might be helpful to the House. The lower evidence threshold would apply to most conditions, but to show that the imposition of conditions such as the use of plastic glassware or closure of windows after a late hour or the use of CCTV in or outside bars is “necessary” for the promotion of licensing objectives, including the prevention of nuisance or crime and disorder, is an onerous test. It would be less onerous for local authorities to show that such conditions were “appropriate” for the promotion of the licensing objectives. I hope that that is helpful to the House, because when we debated the equivalent amendment in Committee, I was unable to give an example such as that. I hope that that gives the House a feel for the thinking behind the Government’s change to the wording.
I can assure my noble friend that these decisions will still need to be evidence-based. We will include statutory guidance on the new tests, as I have suggested. I am not in a position to say that the guidance will be available at this stage of the Bill, but it will be made available. It will be consulted to ensure correct interpretation once the legislation is applied. On that basis, I ask my noble friend to withdraw the amendment.
My Lords, I thank my noble friend the Minister for her response. I thank also my noble friend Lady Hamwee and the noble Lord, Lord Stevenson, for their support. The Minister’s reply to the noble Lord, Lord Brooke of Sutton Mandeville, illustrated only too well how cunning government departments are in answering questions about the ECHR. The response was fascinating, being essentially that there is “necessary” and “necessary”, and that, for the purposes of the ECHR, “appropriate” equals “necessary”. That seemed to be what the Minister was saying. It is clearly highly dangerous to quote the ECHR in these circumstances, because you get an Alice in Wonderland type of response.
However, I was very grateful for the remainder of the Minister’s response. Her undertaking to consult on the statutory guidance will, I think, be welcomed by all concerned. Some of the examples that she gave might not be considered “necessary”, although, as I said in my opening contribution, if licensing authorities are able to impose 64 conditions on a takeaway, they do not lack powers. I am not going to push this. We have had a good debate over two stages of the Bill. I have tried to express the concerns of the trade on this matter. I hope that that dialogue will continue in the statutory consultation so that “appropriate” is confined —so that it is not equivalent to “suitable”, and certainly not equivalent to “convenient”. In the mean time, I beg leave to withdraw the amendment.
My Lords, the amendment is designed to probe whether the Government have firm plans to introduce exemptions for the EMRO regime. I have a later, similar amendment, on which I shall not speak at great length, designed to probe whether there are plans to introduce exemptions from the late night levy and, if so, what those might be. As such, it represents at least a first attempt at defining some of those exemptions.
The Minister promised in Committee that there would be wide consultation on the exemptions to be introduced. It is important for the House to know what the Government are minded to introduce. For instance, will they introduce exemptions for private members' clubs which do not sell to members of the public but are membership-based? They are not, as I explained in Committee, generally positioned on the high street or close to centres of the night-time economy. Rather than basing the regime solely on premises type, can individual well run premises be exempted? Will exemptions recognise best practice and social responsibility initiatives such as those that we debated in Committee—for example Best Bar None, business improvement districts, Purple Flag, Pubwatch and so on?
I hope that the Minister can give us more detail and say that these exemptions will also be consulted on. I beg to move.
My Lords, my noble friend’s Amendment 305ZA would make it a requirement that regulations containing the cases or circumstances which may be exempt from an early morning alcohol restriction order include exempt cases that are defined by reference to particular kinds of premises or particular days. He was good enough to say that it was a probing amendment. I hope that I can give him the reassurance that he seeks when I say that the Government will ensure that exceptions to early morning restriction orders will define cases by reference to particular kinds of premises or particular days. Officials have already had useful discussions, including with representatives of the drinks industry and licensing authorities. As my noble friend acknowledged, we will carry out a full public consultation on the secondary legislation on EMROs later this summer. He asked specifically about private clubs. We will consider whether to include not-for-profit clubs and sports clubs as a separate class, and include that in consultation, before bringing forward the regulations. I therefore ask my noble friend to withdraw his amendment.
I thank my noble friend the Minister. What he has said will be very useful standing on the record for those who want certain exemptions. He has given a useful taste of the kind of exemptions that will be consulted on and indication that the whole EMRO regime will be consulted on later this summer. I beg leave to withdraw the amendment.
My Lords, we discussed this matter in Committee and we want to probe further whether the Government have moved in their thinking. We welcome the Government’s move through Clause 123 to allow licensing authorities the ability to set fees locally on the basis of full cost recovery. Operating the licence system since 2005 has cost council tax payers over £100 million more than they anticipated due to the current, centrally set fee structure, which does not allow licensing authorities to set cost-neutral local charges. Given the economic climate, there is a real imperative to allow cost-neutral fees to be set as soon as possible. However, as we discussed last time, there is a drafting error within Clause 123, which would mean two-tier authorities not being able fully to recover all the costs associated with licensing. This was debated in Committee. When the Minister replied, he acknowledged that, as drafted, the Bill would exclude the relevant costs of trading standards and social services departments and that, even though they were discharging duties under the Licensing Act, they would not be able to recover them. He concluded by saying:
“I see sense in the intention of [the amendment] and, if I may, I shall reflect on it further”.—[Official Report, 16/6/11; col. 911.]
The purpose of the amendment is to press the Government for their response on this issue. I hope that they have some good news for us.
I support the amendment. I reacted rather to the suggestion that what is a marginal cost is therefore almost irrelevant in the case of the authorities affected. I, too, look forward to hearing the outcome of the reflection.
My Lords, as the noble Lord, Lord Stevenson, has explained, Amendment 305ZB seeks to ensure that the costs of social services and trading standards, in their role as “responsible authorities” only, can be covered by fees when they are located outside the licensing authority as well as within it. I certainly acknowledge that I said in Committee that I would reflect further on the proposal. I have done so very carefully and taken legal advice. Having examined it, I have found that the practical difficulties unfortunately outweigh the benefits.
The role of responsible authority involves, for example, considering applications and, in rare cases, applying for review. The costs arising will be very marginal—I am sorry that my noble friend Lady Hamwee objects to the use of that wording—in the context of overall fee income and the wider functions of these bodies. To set fees locally, each licensing authority will be required to calculate its own costs. We would not wish to require it to calculate the costs of another body without very good reason. The amendment would also imply a duty on county councils to report fractional costs and on the licensing authority to pass the funds to the county. The cost of this would then be passed on to fee payers even if the net gain to local government was very little or even nothing. The current fees regime makes no provision for district councils to pass funding to county councils in respect of these functions and we understand that no money has been transferred.
As I said, I have considered this matter carefully. In a nutshell, I am asking noble Lords to accept that the amendment would result in substantial extra bureaucracy and costs which would be passed on to licence holders for very little benefit. I ask the noble Lord to withdraw the amendment.
My Lords, can the Minister tell the House whether these practical difficulties have been discussed with the Local Government Association, which would undoubtedly have an input into this? If not, that is a pity.
My Lords, flicking rapidly through my papers, I cannot find the answer to my noble friend’s question. I shall write to her about it.
My Lords, I think that the noble Lord opposite and I would have heard if there had been a discussion. I put that rather gently but firmly.
There was, I think, a hint of menace in what the noble Baroness was saying. She was leaning forward slightly, and it was well judged to deliver that blow.
The LGA has indeed been concerned about this issue and has circulated documents widely which address the issue and make the main points that I repeated in the discussions earlier. It has also made it clear that it is very concerned about this matter. Although the Minister said that it was a marginal cost, every pound is important to local government. It is unfortunate that the Government have said that the cost of the bureaucracy of this might outweigh its benefits when those who are responsible for delivering it say that they want it to happen.
The Government are hiding under the question of bureaucracy. They promised a very important principle—that there would be a full cost recovery basis for licensing. They have gone so far down the line but they are not prepared to go the further stage. This is a disappointing result and we would like to test the opinion of the House.
My Lords, it gives me great pleasure to move Amendment 305A, in my name and that of other noble friends in many parts of the House. The purpose of the amendment is to extend the limits on temporary event notices under Section 107(4) of the Licensing Act 2003 from 12 to 15 events per annum.
I readily concede that, within a Bill as controversial and weighty as this police reform and social responsibility legislation, our amendment is both simple and harmless. Yet it carries with it the hopes and aspirations of many thousands of clubs throughout the UK—working men’s clubs, Conservative, Labour and Liberal clubs, British Legion, miners’ and Armed Forces’ clubs, all of which play a vitally important part in the lives of their communities in every part of this green and pleasant land. The proposal to extend that by three occasions a year gives these non-profit-making clubs the opportunity to play a greater part in contributing to fundraising and community events and supporting good causes, which are the essence of good community life.
The All-Party Group on Non-Profit-Making Members’ Clubs—of which I declare that I am currently the secretary and was chairman for many years when I was in the House of Commons—fully backs this modest extension of the temporary events for clubs, as also does the Minister for pubs and clubs, Mr Bob Neill. The Culture, Media and Sport Committee in reporting on the operation of the Licensing Act 2003 also recommended an increase to 15, as proposed in this amendment.
Non-profit-making clubs up and down the land have carried a heavy burden in the past few years. The negative effects on trading by the introduction of the smoking ban, the greater expansion of cheap alcohol in supermarkets and the perpetual increases in the cost of beer and beer duties, together with the disastrous effects of the bankers-induced recession, have all conspired to place many clubs in the greatest danger to their survival that they have ever experienced. Support for this amendment would demonstrate in a small but practical way our appreciation for the value and service that these institutions offer to their communities. I beg to move.
My Lords, my name is on this amendment. I fully support all the points raised by my noble friend Lord Bilston. If the Government feel unable to agree to this change today in the Bill, I hope that I could have some information and assurance that the matter will be raised through other channels. How soon could we revisit the issue if it cannot be done in this way?
My Lords, I will certainly be brief. I do not think anybody seriously believes that non-profit-making clubs are the cause of some of the problems sometimes associated with other clubs. They do much good work in the community and for charities, as has been said. They are not now always financially strong, as my noble friend Lord Bilston explained. We hope that the Government will be able to look sympathetically on the amendment.
My Lords, with even greater brevity, I just intervene to say that, having listened to the noble Lord, Lord Bilston, the noble Baroness, Lady Farrington, and the noble Lord on the opposition Front Bench, I want to appeal to the sympathy of my noble friends on the Front Bench. It sounds like a good worthy cause for people who have been having a bit of a struggle. I know a number of them in my own former constituency area, so I hope we shall get a sympathetic ear.
My Lords, I add my support. Like my noble friend Lord Newton, I had many such clubs in my former constituency. I thought that the noble Lord, Lord Bilston, moved the amendment very moderately and sensibly and made a completely unanswerable case. I hope that we have a very sympathetic response from my noble friend who will be replying to this brief debate and that, at the very least, he will be able to follow the injunction of the noble Baroness, Lady Farrington, and give us some encouragement, because it really is a truly worthy cause.
My Lords, Amendment 35A would increase the number of temporary event notices that may be given in relation to single premises in any one calendar year from 12 to 15. I am well aware of the noble Lord’s tireless work for these centres of our communities and thank him for that. This proposal is very much in line with the direction in which we are travelling. We are legislating to allow for greater flexibility and a more relaxed and liberal system, particularly for small, voluntary and community groups that make use of the temporary events notices to carry out licensable activities. I am very grateful to the noble Lord, Lord Bilston, and the noble Baroness, Lady Farrington, for not only agreeing with us in this general direction of travel but also taking the time to discuss this with me.
Through the Bill, we are already taking substantial steps to relax some of the requirements of TENs. For example, we propose to increase the total number of days in any calendar year on which a single premises can be used to carry on licensable activities under a temporary event notice from 15 to 21 days. We are also relaxing the provisions to allow licensing authorities to accept late temporary event notices. Furthermore, we are also using the Bill to increase the maximum period for a single event that may be authorised by one temporary event notice from 96 hours or four days to 168 hours, or seven days, to help festivals and other forms of entertainment that run over several days. I hope that noble Lords will agree that these are positive moves in the same direction as their amendment.
TENs are supposed to be a light-touch measure, outside the norm of the licensing regime for one-off, exceptional or occasional events. Just to give some balance, we have also considered carefully the views of many residents who responded to our consultation and who complained about noise nuisance from temporary events. We ask noble Lords to agree with us that allowing for an average of one such event a month, or 12 a year, achieves the right balance. However, the Government are committed to reducing the overall burden of regulation across the piece and have been consulting the public on this wider work, including alcohol licensing via its red tape challenge. So for example the Government have announced that they will shortly be carrying out a public consultation, led by the Department for Culture, Media and Sport, on the reform of regulated entertainment under the Licensing Act 2003. In the circumstances, I ask the noble Lord to accept that our direction of travel is very much in line with his own and to consider withdrawing his amendment.
I thank the Minister for that reply, which is very positive. I naturally hoped that he might allow the amendment today, but on the basis of what he has said and the very helpful discussions that we had yesterday, I am very happy to withdraw the amendment.
I will speak also to Amendments 305C, 306ZA and 306ZB. Amendments 305B and 305C are designed to extend the ability of licensing authorities to determine the extent of the geographical spread of the late-night levy area so that it need not apply to the whole local authority area. As we discussed in Committee when, I believe, the Minister expressed some sympathy, this is one of the weaknesses of the provision for a late-night levy. It is a very blunt instrument to deal with the whole of a local authority area.
Clause 127(4) currently prohibits the licensing authority from applying the levy as it is currently stated in only parts of its area. Removing that provision and inserting the words of the amendment into subsection (2) would allow licensing authorities to designate a particular town or city centre within its control as being liable for the late-night levy rather than being totally broad brush in its approach.
My Lords, I intervene extremely briefly. On the strength of my own experience in the two cities, where there is of course an enormous amount of late-night activity and in other parts of the constituency there is absolutely nothing happening at all, I would like my noble friend, to whom I was not very helpful on the last occasion, to know that on this occasion I am sympathetic to what he is saying.
My Lords, I have Amendment 306ZZA in this group. On the issue of the division of the levy between the police and the local authority, at the previous stage I attempted to reverse the proportions, as provided by the Bill. This time I am suggesting a 50-50 split. I am sure that my noble friend will understand how completely reasonable that must be.
At that stage, my noble friend told me as reassurance that the levy had,
“been designed to raise money for the police, who bear the brunt of late night enforcement costs”.—[Official Report, 16/6/11; col. 943.]
I do not doubt the costs borne by the police, but to some extent they are already taken into account in the way that their funding operates. I am concerned that the costs to local authorities, particularly as regards environmental health and some of the organisation involved in dealing with late-night activity, are not acknowledged.
I have brought this back not only to change the proportion but because of a thought that occurred to me after the previous stage. If an authority is to receive little financial benefit from the levy, it may take a decision not to impose it at all. I wonder whether the Government have considered that risk, if I may put it that way.
I will be brief. The noble Lord, Lord Clement-Jones, referred to what my noble friend Lord Stevenson of Balmacara said in Committee in respect of the amendments that the noble Lord has moved, in particular the support that we on these Benches gave for a more targeted application of the late-night levy. That continues to be our position.
My Lords, there continues to be concern about the levy’s geographic coverage emanating from a belief that the levy should be a targeted tool. We are confident that we have provided tools such as early morning alcohol restriction orders to allow licensing authorities to target specific areas with alcohol problems. Businesses profit from supplying alcohol in a safe, late-night environment, so they should contribute to the very substantial police costs incurred. If we gave a licensing authority the power to target the levy, fewer businesses would contribute.
My noble friend Lord Clement-Jones’s Amendment 305B and my noble friend Lady Hamwee’s Amendment 305C risk the levy failing in its objective of raising a meaningful contribution towards policing. To retain the focus on policing, I must also resist my noble friend Lady Hamwee’s Amendment 306ZZA, which would reduce the proportion of the levy money after administrative expenses are deducted that goes to the police.
I hope that my noble friend Lord Clement-Jones will also agree not to press his Amendment 306ZA, with my firm reassurance that we will make regulations on exemptions and reductions. He asked specifically about rural pubs and also jazz clubs. We are currently considering the categories ahead of the consultation. Let me also reassure my noble friend that we wish to use the levy to promote participation in best practice schemes, and we will explore that further in consultation.
As regards Amendment 306ZB, we still wish to retain elements of local discretion, so we cannot accept an amendment that constrains this element of localism. Authorities should be trusted to select the right categories for their area. Many schemes are actively encouraged by licensing authorities. They are best placed to grant exemptions or reductions to those schemes that they feel are effective. On that basis, I ask that the amendment is not pressed.
I thank the Minister for that reply. I also thank the noble Lord, Lord Brooke of Sutton Mandeville, for his support. It is interesting that even in a borough such as Westminster there are cold and hot spots. By analogy, therefore, that is true of most boroughs in the country. I am also grateful to the noble Lord, Lord Rosser, for his support on this matter.
I understand the rationale behind the measure—that it is essentially fundraising designed to defray the costs to the police—but the exemptions will be extremely important in these circumstances. If there is no geographical exemption, there must be a category exemption in many cases so that country pubs can be exempted and not have to pay. If this measure is going to get acceptance, it manifestly must be fairly applied. This is essentially a local tax designed to pay for policing in relation to those establishments that are open late at night. I welcome the Minister’s comments about the consultation, but I hope that he and his colleagues will be in no doubt about the central importance of the consultation, even more so in the case of the late-night levy than in the case of early morning alcohol restriction orders.
Finally, the question that the Minister did not quite address was: why is the regime different for early morning alcohol restriction orders? It seems that while local authorities will not have so much discretion over them, they will have discretion about the late-night levy. I assume the answer to be that each is designed to achieve a particular balance in the circumstances. I take from the Minister’s nods that that is indeed the essence of the matter. I also take it that as the restriction orders are more discretionary, you need less discretion about the imposition of exemptions, and that as the late-night levy is for the local authority, those exemptions will not necessarily be applied so rigorously in those circumstances. However, there is considerable concern about the imposition of the late-night levy and I very much hope that there will be strong guidance to local authorities to exempt in appropriate circumstances—we shall return to the word “appropriate” at the end of Part 2—where the merits of the case demand it. I beg leave to withdraw the amendment.