Police Reform and Social Responsibility Bill

Debate between Lord Brooke of Sutton Mandeville and Lord Clement-Jones

Thursday 16th June 2011 Lords Chamber

[Lord Clement-Jones]

My Lords, I thank the Minister for that very thoughtful and useful response, which helpfully went through the different amendments and added quite a lot to our interpretation of what is before us. I am very grateful to my noble friend Lord Astor for his support on the amendments and on the clause stand part debate. I am also grateful to my noble friend Lady Hamwee for her support at least for the New Year's Eve exemption, and to the noble Lord, Lord Stevenson, for his support on the stand part debate.

We have quite a lot of common ground, which revolves around flexibility. What worries me somewhat is that the flexibility is all one way. I will come to the issue of the consultation process, which will be extremely important. I do not think that there are any puritans in the House. Certainly, I would not regard the right reverend Prelate as a puritan in this regard. Perhaps the noble Lord, Lord Brooke, might just qualify on this ground. I do not see where the clamour is coming from—

[Lord Brooke of Sutton Mandeville]

As there are two Lord Brookes, will the noble Lord make clear about whom he is speaking?

[Lord Clement-Jones]

My Lords, we have had a useful debate about exemptions and I would certainly exempt my noble friend Lord Brooke of Sutton Mandeville from that description.

I regard this as a very important debate because of the potential impact if these provisions are not applied flexibly. I took quite a lot of comfort from the fact that this provides a range of tools, timings and geography that will be very beneficial. I certainly would not accuse the Minister of being a nanny. However, there is something of a difference in philosophy. The powers of the local authority will be pretty wide. She said that she was not favourably disposed to an amendment—

Police Reform and Social Responsibility Bill

Debate between Lord Brooke of Sutton Mandeville and Lord Clement-Jones

Thursday 9th June 2011 Lords Chamber

[Lord Clement-Jones]

My Lords, I support Amendment 240 moved by the noble Viscount, Lord Astor. I wish to speak to Amendments 240A, 240B and 240P. Amendments 240, 240A and 240B would retain the “necessary” test for the determination of applications for a review of a premises licence. Review proceedings are quasi-judicial, designed to deal with infringements of the licensing regime and have a wide range of penalties available to be deployed against the premises in question, from the imposition of new conditions restricting the operation of the premises to suspension or even withdrawal of a licence. Therefore, it is surely right that a higher evidence threshold should be retained in these specific circumstances.

Amendment 240P, which is grouped with the other amendments that I am discussing, reintroduces the need in Clause 120 for licensing authorities to consider that an early morning alcohol restriction order is necessary for the promotion of the licensing objectives, rather than appropriate. The noble Viscount, Lord Astor, has set out extremely well the need for these amendments and the significance of the change from “necessary” to “appropriate”. The Bill reduces the evidence test for the attachment of licence conditions so that these are “appropriate” rather than “necessary”. We seek to remove that provision from the Bill, either through opposing that the clause stand part or through amendments.

There is no evidence to suggest that local authorities find the evidential burden too restrictive and plenty of evidence from across the country that suggests that it is not a barrier to imposing tough trading conditions, as the noble Viscount mentioned. The substitution of “necessary” for “appropriate” would allow decisions to be taken on the grounds of political expediency, say, or subjective judgment. The fact that “appropriate” is not clearly defined in law, unlike “necessary”, increases the likelihood of legal challenge and appeal. In contrast, operators will still need to satisfy the higher evidence threshold. It is notable that the concerns of operators are shared by the Local Government Association and enforcement authorities, which are worried that it may undermine the robustness of decision-taking.

It is crucial to retain the necessary tests for conditions. Licensing authorities are already able to impose conditions that they and other responsible bodies need to promote the licensing objectives without difficulty. The vast majority do not find the evidential burden for this too restrictive. For those that have experienced difficulties, with a lack of representation being made by responsible authorities about problem premises, the Bill makes local authorities responsible authorities, which means that they will be able to tackle problem premises in their own right, not rely just on evidence supplied by the other responsible authorities.

It should be recognised that licence conditions impose additional cost and restrictions on businesses, so they must be necessary—that is, essential—in order to justify the additional burden on the premises concerned. The breach of a licence condition is a serious offence and carries a fine of £20,000. Such a penalty is too great in respect of conditions that are simply deemed “appropriate”. A change from “necessary” to “appropriate” will introduce subjectivity into the licensing process and could lead to a disproportionately strong voice for minority interest groups that find themselves able to dominate the licensing process. There are many different types of conditions that could be considered appropriate for most, if not all, licensed premises, but would certainly not be necessary for the vast majority of them, which are well managed, responsible businesses. One can think of examples such as plastic glasses, CCTV, doormen, and duplication of existing legislative requirements—all of which could be imposed as perhaps being appropriate but not necessary in those circumstances.

In Committee in the House of Commons, the Government justified the lowering of the evidence test from “necessary” to “appropriate” on the ground that some local authorities feared that a particular condition or step they sought to take would not be regarded as necessary, and that support for the measure was based on “anecdotal evidence”. Surely, this is insufficient evidence on which to base a change of this nature that will fundamentally alter the basis of the Licensing Act. Indeed, the Local Government Association has also expressed its misgivings about the change, I understand.

Why should we reduce the evidence base for conditions so that the need for them becomes a more subjective matter of opinion? This will lead only to conditions being challenged more than is currently the case, resulting in an increased burden on licensing committees, the courts and licensed premises. The licensed trade claims 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 otherwise?

[Lord Brooke of Sutton Mandeville]

My Lords, my understanding of the background to the change in wording brought in by the Government is a little different from that of my noble friend Lord Astor, although closer to that of my noble friend Lord Clement-Jones. My understanding is that it has proved to be difficult and costly for some licensing authorities to prove, on challenge in the courts by applicants, that such-and-such a condition or restriction to the licence was necessary to promote the licensing objectives. In the face of strong legal challenges by trade interests with deeper pockets than local authorities, particularly in these parlous times, some authorities have backed down. I am glad to say that Westminster City Council is a praiseworthy exception.

It is difficult for a local authority to prove that some restriction is “necessary” in advance of a licence being granted, even if on the basis of probability it would be sensible to do so. My reading is that the Government have effectively decided to reduce the burden of proof so that a licensing authority would in future have to prove only that a particular measure is appropriate to promoting the licensing objectives, as the Bill states. Members of my former constituency in Soho and Covent Garden certainly think that the Government’s proposals are sensible and should stand.