Queen’s Speech
Lord Clement-Jones Excerpts(11 years, 12 months ago)
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Lord Clement-Jones
My Lords, I am tempted today to talk about a wide range of policy areas arising: particularly, given my interest in autism, the forthcoming special educational needs, children and family Bill, which is so welcome and was heralded in the Queen’s Speech and in the update given today; or indeed the media and Lord Leveson’s inquiry; or the question of tax relief for charitable donations, on which I agree so strongly with my noble friend Lord Grade and the noble Baroness, Lady McIntosh.
However, we are in an exceptional year for heritage with the Diamond Jubilee celebrations, for sport with the London Olympics and for culture with the London 2012 festival. Last week, I visited the Olympic park. All around it there are signs of new investment such as Westfield Stratford City shopping centre and Inter IKEA’s investment at Sugar House Lane. After the Olympics, we can expect Lend Lease and London & Continental’s international quarter, Qatari Diar’s East Village and many other exciting projects stimulated by the superb new transport links and the initial Olympic park investment benefiting a huge number of residents of east London. This will have been a huge achievement for all those involved.
That area of London of course forms part of the wider “Tech City” and focuses on the creative industries, digital technology and the cultural industries. It has attracted both large and small business and may well be living up to its description as Europe’s Silicon Valley. I particularly welcome the announcement of a new tax credit for animation, video games and TV drama in the recent Budget.
There are, however, certain misconceptions in considering the future of our creative industries that need to be addressed. First, there is the belief that copyright in this country is inhibiting innovation and that reform will somehow deliver a massive increase in our creative industries’ output, a view held by Professor Hargreaves and, it seems, the IPO. By contrast, the approach of Richard Hooper in laying the ground for the new proposed digital copyright exchange, by engaging with creators and the creative industries, seems to have been wholly constructive. In particular, his early thoughts about improving the licensing of copyright in establishing the ownership of rights and in some cases improving the availability of repertoire have been welcomed by all concerned. However, the Government should think very carefully before attempting to implement the bulk of the other Hargreaves recommendations, such as those on orphan works and extended collective licensing, without addressing issues surrounding moral rights of attribution and the embedding of metadata.
Beyond that, consumers need to have good access to digital creative content, but the Government seem to have changed their mind about a fair share-out of the under-1 gigahertz spectrum under the long delayed 4G auction. They also seem to be ignoring issues relating to interference with digital TV signals. With regard to fibre, we in the Communications Select Committee are discovering that serious thought needs to be given to how to ensure access to trunk networks and dark fibre for small local operators.
We have a massively delayed Green Paper that is due to set out the framework for a new communications Bill. With the advent of internet-enabled television and YouView, policy decisions need to be made as a matter of urgency. The key question is what regulation of internet video material streamed through television is appropriate to protect young people from harmful content as we watch a mixture of linear and on-demand viewing from many sources.
It is clear that, as a co-regulator, ATVOD has learnt from its first years of operation and is anticipating the future regulation of broadcast internet material that may be necessary. Ed Richards, the CEO of Ofcom, flagged this up as a major issue in his speech at the Oxford Media Conference earlier this year. Even though we may have different regulators for different media, we still need a new set of common principles that will apply to the regulation of internet, broadcast and theatrically exhibited material. This is exactly the kind of framework that a new communications Bill needs to address.
Then there is the implementation of the Digital Economy Act. Of course I welcomed the outcomes of the Newzbin2 and Pirate Bay cases but, now that the Act has been judged to be valid under European law, why can we expect implementation of the initial obligations code under the Act in only 2014? In addition, as PhonepayPlus, the regulator, says, there will be a growing convergence in payment mechanisms over the next decade for digital content, and we need to make sure that the regulatory framework is right and the consumer is protected.
A major concern of many in the creative industries and cultural area has been the lack of assertion of our phenomenal talent and skills in that sector abroad. I welcome the activities carried out by UKTI and in particular the appointment of the new intellectual property attachés in China, India and Brazil. Like the noble Earl, Lord Clancarty, I welcome the great campaign promoting the UK abroad in the creative area, but normally the British Council exists on a shoestring.
The House was very supportive of my Live Music Bill earlier this year and it passed into law in the previous Session. It is not often that, as happened on 20 January, a Bill emerges unscathed from the Commons when 63 other Private Members’ Bills failed. It will make a significant difference to our young musicians, in particular, and I look forward to the revised guidance that is due and to the Act coming into effect in October.
Migration: University-sponsored Students
Lord Clement-Jones Excerpts(12 years ago)
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Lord Clement-Jones
To ask Her Majesty’s Government what consideration they have given to excluding university-sponsored students from the United Kingdom’s net migration statistics.
The Minister of State, Home Office (Lord Henley)
My Lords, the UK uses the internationally agreed definition of a migrant, which is someone coming to or leaving the United Kingdom for a period exceeding 12 months. It is right that students intending to stay for that period should be counted because during their stay they are part of the resident population and contribute to pressure on public services infrastructure. It is not appropriate to discount them from net migration statistics.
Lord Clement-Jones
My Lords, the department makes no distinction between temporary and permanent migration. Many other countries do, and still fall within the UN definitions. That means that the Home Office is targeting net migration figures that include overseas students, which is directly contrary to the policy of the Department for Business, Innovation and Skills. Surely now that the e-Borders system will be able to track very closely non-EEA students and other citizens coming into this country, it is time to exclude those students from the net migration figures and have a unified government policy.
Lord Henley
My Lords, I am afraid that in terms of migration my noble friend has got it right. I do not think he would want me to adjust the figures purely to achieve the ends that he suggests, as there might be complaints from the House that we were fiddling the figures, and I do not want to be accused of that. We stick by the long-standing international United Nations measure that students who come to the UK for more than a year are counted as migrants.
Public Disorder: Uninsured Claimants
Lord Clement-Jones Excerpts(12 years, 4 months ago)
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Lord Clement-Jones
To ask Her Majesty’s Government what action they are taking to ensure that police authorities speedily and fairly settle claims outstanding under the Riot (Damages) Act 1886, particularly for uninsured claimants.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government are committed to dealing with all claims where property was damaged in the August disturbances. We are working closely with the affected police authorities and the insurance industry to ensure that the processes that they have in place allow claims to be made as quickly as possible.
Lord Clement-Jones
My Lords, thousands of households and businesses are still waiting for compensation from police authorities after all this time. Some £3,500 has been paid out, of the £200 million or so worth of claims, and many valid business interruption claims are being contested. Does the Minister agree, especially in the light of the Prime Minister’s assurances on 11 August, that this is quite unacceptable? Will the Home Office issue firm guidance to police authorities to speed up the processing of claims and stop them hiding behind technicalities—for instance, that in some areas the disturbances did not constitute a riot for the purposes of the Act?
Lord Henley
My Lords, I accept what my noble friend says, that things have not been as speedy as they should have been. We estimate that some 5,000 claims have been received, totalling in excess of £250 million, but we must remember that a lot of those claims will include claims for loss that are not covered by the Act. We have to ensure that we do not pay out for things that the Government are not responsible for. We will try to deal with—as the noble Lord implied in his original Question—the uninsured claimants first of all, but obviously we want to deal with the insured claimants as well. That is why I stress that we are working with both the police authorities and the insurance companies to ensure that that is the case.
Immigration: Students
Lord Clement-Jones Excerpts(12 years, 5 months ago)
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Lord Clement-Jones
To ask Her Majesty’s Government what evaluation they have made of the impact of the new student visa rules on the intake of overseas students in United Kingdom universities for the academic year 2011–12.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government’s impact assessment concludes that the student visa reforms will have no impact on the number of visas issued to international students to attend UK universities either in the academic year 2011-12 or in subsequent years.
Lord Clement-Jones
My Lords, that shows that the impact assessment must be flawed. The early indications are that they are being heavily impacted, particularly from India, where the number of students is 20 per cent to 50 per cent down, as a result probably of the withdrawal of the post-study work route visa. Will the Government reconsider their policy before treating students as economic migrants and irreparable damage is done both to the finances and the reputation of UK universities?
Lord Henley
My Lords, I do not accept what my noble friend had to say, and I would refer him to the comments made by Universities UK about the reforms, saying that they will allow British universities to remain at the forefront of international student recruitment. I also refer my noble friend to the latest figures for non-EU university student applications for the 2012 academic year which are mostly for medical, dentistry, veterinary and Oxbridge courses, and those show an 8.8 per cent rise.
Police Reform and Social Responsibility Bill
Lord Clement-Jones Excerpts(12 years, 10 months ago)
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Lord Clement-Jones
Lord Clement-Jones
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?
Baroness Browning
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.
Lord Clement-Jones
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.
Lord Clement-Jones
Lord Clement-Jones
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.
Lord De Mauley
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.
Lord Clement-Jones
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.
Lord Clement-Jones
Lord Clement-Jones
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.
Lord De Mauley
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.
Lord Clement-Jones
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.
Police Reform and Social Responsibility Bill
Lord Clement-Jones Excerpts(12 years, 11 months ago)
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Lord Clement-Jones
My Lords, I can be brief in speaking to Amendment 241C. I very much commend Clause 125, which sets in place a review of the effect of the amendments to the licensing scheme. It is common ground between us, whatever side we may be on, that the proposed amendments are highly significant. The Bill provides for a review to take place after five years. In view of the significance of these amendments, Amendment 241C is designed to make that review occur every two, not five, years. That would be much more appropriate, given the significance of the changes that will have been made by the Bill.
Lord Brooke of Alverthorpe
I support the noble Lord, Lord Brooke of Sutton Mandeville. There is a range of issues here that cannot wait five years to be reviewed. The amendment proposing a review after two years would be far more acceptable. I also want to draw the attention of Ministers to reports produced by this House way back in 2002, when the European Union Select Committee reviewed drinking and driving legislation and compared it with that of other European countries. The report pressed the case for the limit to be reduced to 50 milligrammes. The puritan Lord Brooke of Alverthorpe chaired that committee, so I recall it very well indeed. We must keep raising these issues, although time may pass by without speedy implementation.
It was interesting that when I was pulling out my papers on this issue, I came across a press cutting with the headline:
“MPs and peers cast eye on Lords reform”.
The article continued:
“A committee on Lords reform is today expected to seek to allay fears that the issue has been kicked into the long grass by agreeing a timetable to put forward proposals by October”.
That article was dated 9 July, 2002.
Lord Clement-Jones
“( ) Nothing in this Chapter applies to holders of club premises certificates.”
Lord Clement-Jones
My Lords, we now move to the very important part of the Bill relating to the late-night levy. The House may be relieved to hear that I shall speak extremely briefly to Amendment 241CA and to Amendments 241EA, 241GA, 241GB, 241KA, 241MZA and 241SA. The arguments about private members’ clubs have been made already under the EMRO discussion.
The Minister said there are clubs and clubs, but the arguments are very powerful for private members’ clubs to be dealt with differently under the EMRO and the late-night levy provisions. I hope that the Minister will give that further thought since private members’ clubs have a self-regulatory process, and if that process is not properly operative then they should not receive private members’ club premises certificates. It is as simple as that. They are subject to greater regulation than ordinary licensed premises and for that very reason should be excluded from the operation of the late-night levy.
Moving on to the next group of amendments, Amendments 241D, 241E, 241F, 241G, 241L and 241M, I am afraid that I will be slightly longer. Amendment 241D extends the ability of licensing authorities to determine the extent of the geographical spread of the levy area so that it need not apply to the whole local authority area. This is one of the great weaknesses of this provision for the late-night levy. It is a very blunt instrument, dealing with the whole of a local authority area.
Amendment 241E deals with Clause 126(4), which prohibits the licensing authority from applying the levy as it is currently stated in only part of its area. Removing this provision 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. A large number of trade organisations are particularly concerned about the untargeted nature of the proposed late-night levy. A licensing authority may not decide that the late-night levy requirement is to apply only in part of its area, which means that community pubs in particular will be affected by a requirement which is presumably really aimed at addressing the challenges in town and city centres. The power can only be applied across a licensing authority district as a whole rather than a specific area, and its untargeted nature means that many responsible businesses will be caught.
A late-night levy can be imposed irrespective of whether a bar is a source of disturbance. Ultimately it is unfair that any licensed premises operating in a responsible manner should have to pay such a charge when the best course of action would be specifically to tackle the irresponsible operator or indeed individual members of the public who cause problems.
The Government justify this measure on the basis that the easiest, most effective way of dealing with the issue is to go for the whole council route because it is viewed as less bureaucratic, and that the levy must be attractive to licensing authorities by being simple to introduce. However, we must not put the levy on to properly run businesses. If they are forced by a combination of the levy and EMROs to close at midnight, as I said to an earlier amendment, this will simply mean that young people will spill out on the streets at 11 pm, as they always used to do, which is clearly not going to be conducive to public order. It is patently unfair, as was pointed out in Committee in the other place, to impose a charge on a business which may be 20 miles away from the source of the problem, and it cannot be justified.
It is understood that premises could apply to the licensing authority to reduce their hours without being charged a fee but it should be recognised that this option still places a cost on businesses, not just in their management time or legal fees in making such an application but also in potential lost revenue from reducing the trading time of their business.
Moving on to Amendment 241F, the levy will be applicable to any premises holding a licence to sell alcohol under the Licensing Act 2003 if it is open for just one day after the time stipulated in the late-night levy, which will most likely be midnight. This means that any pub, hotel, restaurant and so on which has permission to sell alcohol, even on just one night in the year, will become liable for the levy, and this will catch many venues with restricted late-night opening to cover such events as New Year’s Eve and bank holidays. That is the reason for inserting “15” instead of “one” in this amendment.
Amendment 241G is very similar to a previous amendment on EMROs. It ensures that premises that open late only once a year on New Year’s Eve are not required to pay the levy. This would alleviate an unnecessary cost burden on thousands of small pub businesses which would otherwise have to pay the levy. The Bill makes provision to impose a late-night levy on all premises licensed to sell alcohol between midnight and 6 am. The levy would be imposed at the licensing authority’s discretion across the entire local authority area. The funds raised would cover the costs of policing and other arrangements for the reduction or prevention of crime and disorder in connection with the supply of alcohol between midnight and 6 am. As it stands, the late-night levy unfairly penalises responsible retailers by applying to all licence holders and not just those who trade irresponsibly by contributing to alcohol-related disorder. This new measure will indeed introduce further costs for responsible businesses when powers to deal with irresponsible traders already exist.
I move on to Amendment 241L. As the Bill stands, licensing authorities could introduce an early-morning restriction order beginning at 12.30 am and running through to 6 am, and impose a levy on all premises that remained open until 12.30 am. Surely it is not intended that this combination of EMRO and levy should punish those caught out in this way. I beg to move.
Baroness Browning
I hope I can reassure my noble friend that this levy has been designed to raise money for the police, who bear the brunt of late-night enforcement costs. As such, we believe they should receive the majority of the levy revenue after administrative expenses have been deducted. The local authority now works with the police and in future will work with the police and crime commissioner, so there will be a very close working relationship between the two to identify whether a licensing authority wishes to apply the levy.
My noble friend mentioned disproportionality in the levy charges. They have yet to be set. We have published only indicative figures. We currently plan to structure the levy charges on the existing licence fee bands, which, as my noble friend will know, are predicated upon the rateable value, so although this will be nationally set, it will be indicative of regional differences in bandings. In that way, we hope to have fairness and proportionality in the way in which the charges are structured.
Lord Clement-Jones
My Lords, I thank the Minister for her response, which I found to be rather a curate’s egg. Of course, I accept that the levy proposal was in essence contained in the coalition agreement. She will notice that no clause stand part debate is proposed from this or any side of the House. I do not think there is a great quarrel around the House with the principle of the levy. Certainly, I did not pick that up during the debate. It is all about the way in which the levy will operate and the interrelationship with EMROs. In particular, it is about the nature of the exemptions and the blanket nature of the levy.
I am pleased to hear that the Minister in the consultation will reflect the different types of clubs and will specifically look for different types of exemption, which is welcome. I would never apply the word “dusty” to this Minister’s replies, but I did think that the Home Office is erecting quite a brick wall to the idea that one can be rather more flexible about the way in which the levy operates. I know that the Minister said that it was not a crime and disorder provision but was all about policing. However, it seems grossly unfair that in a local authority with a mixture of rural and urban, the rural pubs, many of which are struggling, have to pay a levy when they will not see a policeman in a million years. Why on earth should they pay for this?
A huge issue is involved, which seems contradictory. This Government are, I think, the first Government to appoint a Minister with responsibility for community pubs, which was a great thing. He is doing a great job but in a rather different department from the Home Office. However, the policy does not seem to be joined up. Here we have a great deal of work going on in DCLG about planning and the various aspects of the survival of the community pub. We have the Government in a very welcome fashion supporting a Private Member’s Bill that I have put forward about live music, which is designed to preserve the community pub, and certainly the smaller community pub, in many ways. However, here we are with a provision that will directly impact on them if their local authority is a large one that includes a lively, to say the least, city centre. That is a major problem.
Baroness Browning
I have heard what my noble friend says, and I of course understand the situation for rural pubs, having represented 650 square miles of rural Devon for nearly 20 years. I will take away what he has said. I cannot make any promises today, but I hope he will remember that I said that there would be a consultation on exemptions. The point that he has made today will be noted.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. I knew that if I carried on talking for long enough she might respond. I will have to use that technique on more occasions. In the mean time, I thank the Minister for her response and beg leave to withdraw the amendment.
Lord Clement-Jones
“Accountability of police
(1) The local police force must provide a written report to the local authority at the end of each levy year where a levy is applied to the local authority area.
(2) The report is to be submitted to the local authority within 12 weeks of the end of the levy period.
(3) The report must contain—
(a) details of the amount received through the levy and the amount spent by the police in policing the areas covered by the late night levy during the hours that it applies; and(b) details of the impact of the levy on crime and disorder in the area covered by the levy.”
Lord Clement-Jones
My Lords, I can be brief on this amendment and Amendment 241Q, which is grouped with it. These new clauses would ensure that there is accountability for the funds raised and distributed to the police and the licensing authority, which are not obliged under the Bill as it stands to apply the moneys to the late night levy area. They are able to use the funds within their general expenses as they see fit. These proposed new clauses will ensure that those who are subject to the levy are informed about the application of the funds, which are to deliver improvements in the area to which they are applied. I beg to move.
Baroness Browning
My Lords, while other amendments have tried to reduce administrative processes, these two amendments attempt to add a publishing requirement on the police and the licensing authorities. I hope that noble Lords will agree that transparency already exists in the late night levy design. I believe that the levy will achieve an appropriate level of transparency and no further reports are required. We will require licensing authorities to consult on proposals and publish the expenses they incur in administering the levy. The police are being reformed to make them more accountable.
Let me deal first with the police. The money given to the police from the late night levy will go into the police fund for the force area and be subject to the relevant scrutiny processes. We believe that it will be a waste of police resources and unnecessary bureaucracy to require the police to provide a report for the levy spend in particular. Further checks and balances will exist under police and crime commissioners. The PCC will be publicly scrutinised by the police and crime panel. Any data used in that scrutiny will be made public unless they are operationally sensitive, and PCCs will also be subject to freedom of information provisions.
With regard to the licensing authority, transparency is provided in the pre-levy consultation process. This consultation will consider, among other things, the services which the licensing authority intends to provide from its levy revenue. The authority will then write to all affected premises to inform them of its final decision. The public will not need yet another publication setting out how the licensing authority spends the levy funds. Further, the Bill will require licensing authorities to publish a statement of the administration expenses which they have deducted from the levy revenue. The licensing authority, as an integral part of the council, is of course accountable to the public.
The late night levy is light on administration and process. It has been designed as a contribution towards policing costs from those who profit from the sale of alcohol in the late night. To require an assessment of the impact of the levy on crime and disorder, as these amendments seek, would confuse the objective of the late night levy with tools such as early morning restriction orders which, as I have already mentioned in response to previous amendments, are specifically designed to tackle particular pockets of alcohol-related crime and disorder. I believe that necessary transparency is adequately provided for to ensure that levy receipts are spent in an appropriate way.
Lord Clement-Jones
My Lords, I thank the Minister for that quite complex and useful response. Her argument is that there are many ways, other than those provided by the amendment, in which transparency is achieved. The amendment also seeks accountability, which is also an important principle that is involved. I shall read what the Minister said extremely carefully and consider whether the existing framework is adequate to explain what the levy is devoted to, and how useful it is in the context. I am very grateful to the Minister for her reply and beg leave to withdraw the amendment.
Lord Clement-Jones
Lord Clement-Jones
My Lords, I shall not detain the House too long. It would be easy to spend time talking about some of the schemes that would justify an appropriate discount. However, I shall first move Amendment 241T. By a strange quirk of grouping, the Minister has already partly responded on the concept of a discount for these community-type schemes. The effect of these amendments would be to require the levy to be reduced by 50 per cent per premises participating in well established, recognised corporate responsibility initiatives—specifically, Best Bar None, business improvement districts, Purple Flag, Pubwatch, community alcohol partnerships and other similar watch initiatives, all of which demonstrably reduce the incidence of crime and disorder in town centres. These could be undermined if participating businesses were required to fund all these bespoke schemes and a more general levy. To acknowledge the contribution and investment that industry has made to improving standards and addressing challenges in the night-time economy, particularly in town and city centres, it is therefore appropriate that these high-profile initiatives are identified in the Bill as requiring a reduced levy. This will also safeguard the initiatives themselves and encourage further take-up in areas where such partnership approaches do not yet exist.
I dare say that many of us have received correspondence from some of the projects, particularly the business improvement districts. I have received several of those. The Nottinghamshire Leisure business improvement district experience is extremely interesting. Some of the correspondence relates to the community alcohol partnerships, which have also been very successful. I understand that the Government plan to recognise in guidance, and perhaps in regulation, the nature of these schemes and the fact that they will receive discounts. However, I hope that they can be a little more forward in the Bill by recognising that that will definitely be provided for. I beg to move.
Lord Stevenson of Balmacara
My Lords, I support the previous speech and the amendments that it introduced. On this side of the House, we believe that premises that work with the police and local authorities to minimise crime and disorder should qualify for a reduction in the late night levy. I take the point made by the noble Lord, Lord Clement-Jones, that it would be helpful if this could be put in the Bill, not just because we like to see things in legislation but because it is so important that we recognise what they are doing.
In many cases, for example, these venues are safe havens for young people. If you put young people in a protected environment rather than having them out on the streets you are doing some public good. In a sense, that is something that we want to encourage and we would be grateful if it could be considered in that way. Well run and responsible venues already participate in voluntary schemes to combat anti-social behaviour, and if they are forced to close at midnight to avoid the levy then they will effectively be throwing their young clientele out of a safe venue onto the streets.
Baroness Browning
My Lords, licensing authorities will have the discretion to decide which of the exemption and reduction categories they will apply in their application of the levy. Although I am unable to accept these amendments, I welcome their overall intention. It is precisely these types of premises and the schemes that they run that we want to consider for reductions from the levy charge. However, the amendments would prejudge our public consultation on exemptions and reductions, which we will introduce through regulations.
We have already begun the design of that consultation through a number of working groups, with representatives of the trade, licensing authorities and the police. I would urge noble Lords to await this consultation so that we might have the opportunity fully to consider the views of our partners. There are many schemes, such as the ones mentioned this afternoon, that allow the business community to work together to address some of the negative effects of the sale of alcohol in the night-time economy. I support the principle that drives these local initiatives. However, there is a range of such initiatives and we need to consider the breadth of these schemes and how we might define workable categories for reductions. On that basis, I ask noble Lords not to press their amendments.
Lord Clement-Jones
My Lords, I thank the Minister for that reply, which gives all the right signals in terms of the kind of scheme that would be included. Of course, I was trying to prejudge the consultation to a degree, but I elicited a response from the Minister that is helpful.
Having reached the last amendment dealing with the licensing and levy in Part 2, I must say that an awful lot of weight is now being borne on the consultation. On many occasions replying to groups of amendments today, the Minister has relied on the efficacy and fairness of that consultation to business, particularly, but also to residents and local authorities. I hope that she gets it right because it is of huge significance that the balance and outcome of that consultation are fair. I beg leave to withdraw the amendment.
Police Reform and Social Responsibility Bill
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Lord Clement-Jones
Lord Clement-Jones
I shall speak to all the amendments in this group, other than Amendments 240V and 240X, and also touch briefly on clause stand part. I nevertheless support Amendments 240V and 240X, which seem extremely sensible.
All my amendments in the group are designed to mitigate Clause 120, which radically alters the impact of Sections 172A through to 172E of the Licensing Act introduced by the Crime and Security Act last year, in that they can now be imposed from midnight to 6 am instead of from 3 am to 6 am, and on the say-so of the licensing authority, not the full council as before.
First, I take Amendments 240PA and 240PB, which are designed to remove private members’ clubs from the scope of the clause. The proposed amendments to the Licensing Act 2003 in the Bill—the late-night levy and the early morning alcohol restriction orders—are designed to tackle issues relating to licensed premises, largely on the high street, that sell alcohol for consumption on the premises to members of the public. In contrast, private members’ clubs are not selling to members of the public but are membership-based. They also, by and large, are not positioned on the high street or close to centres of the night-time economy, because their original remit, which has not changed, was to serve and be at the centre of the community in which they were located. They not only provide a valuable service to their members but have responsibility for the conduct of their members in the community. They have a self-regulatory process, which enables censure by the committee of individual members' conduct.
On the basis that there is self-regulation and the recognition that private members’ clubs do not contribute to the issues which have prompted the proposed provisions of the levy and restriction orders, the clubs should be exempt from the measures. Not only are they particularly onerous in the extra revenue that will be required to pay for the levy, which we will deal with later, the loss of facilities after midnight under the early morning restriction order provisions will further curtail the revenue stream which is critical for their survival. The membership of clubs is reducing and revenues are decreasing. DCMS statistics show that, as well as all the pubs that have closed, the net reduction in clubs operating with a club premises certificate has reduced by 300 per year from 2008 to 2010.
Younger members of the community in which the private members’ club thrived now have a much wider choice of venues, which are on the high street, and have other interests which do not include the traditional club environment. Nevertheless, those clubs and their facilities continue to be important, and we should protect them against changes which will have a significantly detrimental effect on their survival.
Moving on to Amendments 240Q to 240W, Amendment 240Q makes a modest proposal of a 1 am start time for EMROs, rather than midnight. Midnight is far too early in the circumstances and out of step with today's customer expectations. Frankly, putting the beginning of the EMRO at midnight could be a business-killer for many businesses. Amendment 240R removes the restriction on temporary event notices which an EMRO would impose.
Baroness Browning
My Lords, local authorities will be allowed to have their own exemptions, but that will be part of the consultation that is taking place.
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—
Baroness Browning
I apologise for interrupting my noble friend and hope that he will forgive me: I wish to put something on the record. I was asked by my noble friend Lady Hamwee about whether EMRO exemptions would be decided locally and I am afraid that I gave her the wrong answer. It is levies that the local licensing authority will have an opportunity to issue locally: EMROs will be a centrally decided package. I apologise for that.
Lord Clement-Jones
My Lords, I worry that there will be no review mechanism for these EMROs unless the local authority decides that there should be. Of course, local businesses will be able to make representations both at the point that the Minister described when the EMRO is being considered, and no doubt during the course of the EMRO in terms of demonstrating that the original problem has gone away or been dealt with or whatever. However, what worries me is that there will be no mechanism that the business can rely on, at the point where the EMRO falls due for review and when the time is up, to ensure that a full and proper debate can take place.
The most important issue here is how that consultation is going to take place. I was very interested in the way in which the Minister described the process; for instance, the consultation on exemptions. I do not know whether it will be statutory guidance or whether an order will come before this House or, indeed, who would be consulted in that process. It would be extremely valuable to get from the Minister an indication, even at this point, about which cohort of people would be consulted because there are strong views about this. The real, deep worry that people have is about the potentially blanket nature of these EMROs.
Baroness Browning
It would be a full public consultation. The review mechanism is judicial review.
Lord Clement-Jones
My Lords, that is deeply reassuring to us lawyers, but I am afraid it is not very reassuring to the owners of businesses because they will simply have to place themselves in the hands of my colleagues and myself in challenging these orders on the grounds that no reasonable council would have imposed them. That is a very tall order.
Viscount Astor
Far be it from me to try to deprive my noble friend of business, but does he agree that one of the problems is that almost no operators can afford judicial review unless they are part of a large chain?
Lord Clement-Jones
Absolutely. That is only going to add to the burdens on business. Although I accept that the Minister has gone as far as her brief will allow her, I seriously ask her to give further consideration to this. I was delighted to hear what the noble Lord, Lord Stevenson, had to say about his enthusiasm for live music, but the reason why he was talking about it was the potential impact on small venues and live music in areas where local councils have decided that they do not like what is happening in other places—not necessarily in the small clubs but in the large boozers, so to speak. That is sweeping up everybody into one single pot with one remedy. Although I have heard quite a lot today from the Minister that was reassuring about the ability to deliver flexibility, I do not think we have heard quite enough yet. The least convincing response was on TENs. If you have a TEN, and an EMRO is opposed, you can have a bit of a consultation on it, but actually the remedy is to move your event in time or space. That seems pretty onerous and jolly unfair if you are a local community group and you have to shift yourself in that way after an EMRO has been imposed.
I look forward to further dialogue with the Minister and very much hope that we will continue that, even before Report, on certain areas of these reforms of the Licensing Act. In the mean time, I beg leave to withdraw the amendment.
Lord Clement-Jones
My Lords, I should like to speak to Amendments 240XF, 240XH and 241ZZA, while supporting Amendments 241 and 241Y. These amendments seek to remove the lines of the Bill which give councils the power to charge licensees for more than just cost recovery in the licensing system. Businesses in the sector are concerned about the cost implications of the amendment in the other place on fees. In already difficult economic times, licensees will be facing significantly increased costs, which will be particularly difficult to bear for small businesses.
The wording of the Bill is extremely vague, stating that businesses will not only be liable for costs associated with local authorities discharging the licensing function but also the general costs of the licensing authority and other associated authorities, such as the planning department. These amendments seek to delete the provision that would allow licensing authorities to reclaim not only the cost of carrying out activities relating to licensing but also any other general costs. This wording would effectively give local authorities power to charge licensees for a whole host of alternative activities even if they are not related to the cost of administering the licensing regime.
The legislation does not explain what safeguards will be in place for businesses. There has to be a transparent process where local authorities would need to demonstrate why their chosen fee level is appropriate. Businesses would have to have an opportunity to feed into this process and to appeal the decision if the local authority was looking to set fees at a level that was disproportionate. There should also be a national cap on the level at which fees can be set to avoid local authorities applying disproportionate charges.
While the measure would have a significant impact for all premises, there is the concern that it could disproportionately affect smaller businesses. It could be the case in certain areas of particularly high licensing fees that independent businesses find themselves priced out of the local market and therefore unable to compete with larger chains. That would be to the detriment of the consumer who would find that their choice is limited. With reference to the off-trade, a significant number of licensed premises are grocery retailers, so this decrease in competition locally would impact on far more than just the ability to buy alcohol. Any increase must consider the effect on smaller businesses.
Amendment 240XH is designed to ascertain the Government’s intention on the introduction of a cap of the amount that local authorities can charge. Subsection (3) of the new clause to be inserted in the Licensing Act 2003 under Clause 122(2) provides,
“the fee is to be determined by the licensing authority to whom it is to be payable”.
Subsection (4) of the new clause allows the regulations to provide a constraint on the amount up to which local authorities can charge but this does not necessarily mean that such a limit must be set. Businesses have a real concern that some councils may charge excessive amounts based on their costs, which will be difficult and expensive to challenge. We know already that the level of enforcement activity varies around the country and such variation is not necessarily driven by need. Not all councils are driven by the Hampton principles of good enforcement and over-zealous enforcement can be expensive and unproductive. The wide range of fees collected by councils under the old public entertainment licence regime was one of the drivers of their being subsumed into the Licensing Act 2003. A repeat of the problems, discrepancies and costs to businesses should not be repeated. A national cap, such as that imposed in the Gambling Act 2005, is a not unreasonable request and should be specifically included in the Bill.
Amendment 241ZZA builds on previous amendments to ensure that safeguards are in place in the legislation to prevent businesses facing excessive and unfair licensing fees.
Viscount Astor
Amendment 241, to which my noble friend Lord Clement-Jones referred, is in my name and concerns fees. Subsection (7) of the new clause to be inserted in the Licensing Act under Clause 122(2) states:
“In determining the amount of the fee, the licensing authority must seek to secure that the income from fees of that kind will equate, as nearly as possible, to the aggregate”.
Paragraph (a) of subsection (7) states that,
“the licensing authority’s costs referable to the discharge of the function to which the fee relates”.
I do not see any problem with that clause, which seems enormously sensible and would collect most of the costs. However, paragraph (b) of subsection (7) refers to,
“a reasonable share of the licensing authority’s general costs”.
That seems to be a recipe for confusion because there will be endless arguments about, first, what is a reasonable share and, secondly, what are the licensing authority’s general costs. I thought that when local government—there are many noble Lords here who are more expert than I am on it—determined fees and collected them, those fees related to the actual things that it was doing. The idea that this can cover general costs, as my noble friend says, would enable a local authority to say that general costs in many other areas—whether for collecting refuse or whatever—could somehow relate to this and then collect the fees. So there is a concern.
I hope that my noble friend can give me some comfort that this will not allow local authorities, which, as we know, are always short of money, to use this to collect fees, which would mean a greater burden on the industry than there should be. [Interruption.]
Lord De Mauley
My Lords, I start by thanking all noble Lords for their thoughtful and constructive comments in connection with these clauses and amendments.
Clauses 121 and 122 address problems in the system of fees under the Licensing Act 2003. Local government has been calling for action on both these points ever since the Act was introduced. Clause 121 introduces the suspension of licences or club premises certificates for failure to pay the annual fee. Currently, an authority must pursue unpaid annual fees through the courts, and there is no other sanction for non-payment. The sanction of suspension will provide a considerable added incentive to licence holders to pay the fee on time. Clause 122 introduces locally set licensing fees. The purpose is to ensure that licensing fees properly recover the cost to licensing authorities of discharging their functions under the Act. Although this clause was introduced on Report in another place, it was not a decision taken in haste. We needed time to ensure that the clause achieved full cost recovery for licensing authorities in a way that is fair to fee payers, licensing authorities and council tax payers.
There are a number of amendments in this group, and I hope noble Lords will bear with me as I attempt to give each amendment the response it deserves. Amendments 240Z and 240XC would remove the requirement on local licensing authorities to provide a receipt. Amendment 240XA aims to reduce the burden of the requirement by requiring that the receipt must be provided only if it is requested. I recognise that these amendments aim to reduce what may look like excessive bureaucracy. At the outset, it is worth emphasising that the clause requires the provision of a receipt only in a case in which a licence or certificate has been suspended and is then reinstated when the fee is paid. We do not expect this to be a frequent occurrence, as we expect licence payers to be assiduous in avoiding suspension. It is not unreasonable for the licence holder to expect clarity as to whether the licence has been reinstated because carrying out licensable activities without a licence is a serious offence. The maximum penalty on summary conviction is six months’ imprisonment, a fine of up to £20,000, or both. Amendment 240XA is a compromise solution whereby licensing authorities will be required to provide a receipt only on request. Having considered it, I believe that this amendment would actually increase the bureaucratic process in terms of the correspondence relating to whether or not a receipt is required, with, I suggest, only marginal benefit.
Amendments 240XB and 240XD would greatly extend the grace period that applies in cases of dispute or administrative error. The period of 21 days is not set in stone as a matter of principle. However, three weeks seems to us a reasonable length of time in which to resolve a dispute or administrative error. It would allow evidence to be provided that the fee has already been paid or that the supposed due date was not the anniversary of the licence. I cannot yet see a case for extending this period by five more weeks, and I would be concerned that it would considerably weaken the sanction of suspension.
Amendments 240XE and 240XG remove references in Clause 121 to the Secretary of State’s powers to prescribe fees. I understand absolutely that the intention is to emphasise the Bill’s contribution to the localism agenda. However, the references which the amendments seek to remove are cross-references to the existing powers to set fees centrally. They are a necessary part of the mechanism by which Clause 122 introduces a power for the Secretary of State to provide that fees are set locally. So the result of the amendments would actually be that the clause no longer provides for locally set fees.
Amendments 240XF and 241 would remove the reference to the licensing authority’s general costs from the description of what fees must cover. I emphasise that there is no intention that locally set licensing fees will fund the general costs of local government in the everyday sense of the phrase, which means that they could raise money from fee payers for something unrelated, such as to help build a new swimming pool or, as my noble friend Lord Astor suggested, to collect refuse. That would mean that licensing fees had become a form of discretionary local taxation. This is certainly not permitted by Clause 122 through the insertion of Section 197B of the Licensing Act, specifically subsection (3), which defines general costs and limits them to costs referable to the discharge of functions under the 2003 Act.
Amendment 241ZA also seeks to reduce the costs that can be recovered by licensing authorities through locally set fees. In this case, it seeks to remove the costs incurred by the licensing authority under the Act, but in a capacity other than that of a licensing authority. The costs referred to are those of the responsible authorities that are part of the licensing authority. These costs were intended to be taken into account by the current centrally set fees. Not to permit these costs to be covered by locally set fees would be to impose a new burden on local government and would therefore be contrary to established government practice and the intention of the clause. Our intention in introducing locally set licensing fees is that they should cover the cost to licensing authorities of discharging their functions under the 2003 Act. The current fees, set centrally, were also intended to cover the general costs as they are defined in this clause, and the defined costs of a licensing authority acting as a responsible authority. To remove these costs would mean that fees did not achieve what they are supposed to do.
Amendments 240XH and 241ZZA seek to ensure that the power to set fees locally is constrained and subject to guidance. I can assure your Lordships that we do indeed intend to make locally set fees subject to constraints. Specifically, we intend to make each fee subject to a nationally set cap, and we will consult on the level of that cap. However, to impose a requirement for the imposition of unspecified constraints would be both excessive and, I suggest, ineffective. A future Secretary of State may, for example, have a legitimate reason to utilise the power to make different provision in respect of different authorities, or not to impose additional constraints on a particular authority. However, it must be remembered that such an authority would still be subject to the limitation that income from fees equates as nearly as possible to costs.
Amendment 241ZZA introduces a duty on the Secretary of State, when providing for locally set fees, to issue detailed guidance. Again, I can assure your Lordships that it is our intention, after consultation, to issue guidance covering all these points. However, I suggest that it is excessive to require all these specifically in the clause. Section 182 of the 2003 Act already requires the Secretary of State to issue guidance to licensing authorities on the discharge of their functions under the Act. It also enables her to make such revisions to the guidance as she considers appropriate. The addition of a new duty, that of setting fees, would therefore justify such a revision, and it is our intention to do so.
Amendment 241ZB seeks to ensure that the costs of social services and trading standards, in their roles as responsible authorities, can be taken into account within locally set fees even when they are located in an upper tier authority. Currently, the clause has the effect that these costs are recoverable only in a single tier authority, such as a unitary authority. I thank noble Lords for drawing attention to this. I know that many noble Lords will be concerned about the addition of any further costs that will be recovered by fees.
It should be noted that the amendment specifies that the costs that should be recovered are those of these two public bodies, but only in their roles as responsible authorities: for example, in considering applications and, in rare cases, applying for a review. This is expected to be a very marginal cost in the context of overall fee income. It does not incorporate the wider costs of these public bodies in dealing with licensed premises. We intend that locally set fees should cover costs that are not covered by the current centrally set fee levels. For example, the costs of the environmental health authority in respect of its wider statutory duties connected to licensed premises are not covered; only the marginal costs that arise from the 2003 Act are. Having said all that, I see sense in the intention of Amendment 241ZB and, if I may, I shall reflect on it further.
Amendment 241Y seeks to remove the provision in the Bill for regulations to be made providing that club premises certificate holders can make a free minor variation before a late-night levy is introduced in their area. It is consequential on a number of amendments that have the combined effect of removing members’ clubs from the application of the late-night levy. I hope that we will be able to discuss it later, alongside those amendments. For the reasons that I have given, I therefore ask that noble Lords do not press their amendments today.
Lord Clement-Jones
My Lords, briefly, before my noble friend replies on her amendment, I welcome the Minister’s useful clarification of the definition of general costs. I shall certainly reflect on that before the next stage. The technical references were extremely helpful. The Minister was also very helpful in talking about the guidance on how fees are calculated and will be dealt with by local authorities.
I welcome the support of the noble Lord, Lord Brooke, for my amendment. It was like the first swallow of summer or something of that sort. On my Amendment 241ZZA, the Minister said that guidance will be published, which is helpful. However, as far as one can see there is no appeal mechanism in the proposed new section that is already incorporated in the Bill. Is it possible for guidance to deal with how that sort of thing should be dealt with as well?
Police Reform and Social Responsibility Bill
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Lord Soley
My Lords, I, too, share the view that alcohol is not a bad thing and that done responsibly it is good. I also do not take the view, although I know the noble Viscount, Lord Astor, did not touch on it, that advertising is not the major problem it is sometimes made out to be. It is more complex than that.
I support these amendments particularly because of proposed subsection (2) in Amendment 244, which is quite an interesting idea as it would enable a local authority to focus on a growing problem in that area. I obviously do not want to rehearse the previous debate. I simply say to the Minister, who has become even more of a friend of mine now that she thinks I am a baby boomer, that in fact I am so pre-baby boomer that I am pre-war. But I like the idea, so I am with her on that.
However, I take issue with the view sometimes taken that things are fundamentally different now. The key difference, with which we have so much difficulty coping and which I am not sure can be dealt with fully in this Bill, is the availability of drink as a result of price to income and the availability of outlets. As regards all the things that people worry about, I have to say that, although I am not proud of it, in the 1950s we boasted about how much we had drunk the night before and went to work with hangovers. I would say to the noble Baroness, Lady Finlay, that one of the differences is that we would hide the drink and not leave it on the windowsill.
The role of women is fundamentally different. In the 1950s, their role was to get you home again. People would boast about how quickly they could drink. All those things were happening. The crucial difference is that you did not have enough income to do it regularly, so Friday and Saturday nights were bad. The other factor was the outlets. As the noble Viscount, Lord Astor, said, you can go to the supermarket. In the 1950s, you would drink in the bars. As the pub came to closing time, you would say, “We have got to buy some drink”. There were not as many off licences around as there are now. You could not buy it over the bar in most cases, so the barman would tell you that you have to go to the off licence. That usually meant going out of the pub into a pokey little room on the side, which would have enough room for only two or three people, where you could buy drink at greater cost.
The outlets have exploded and the difficulty for society to face is that, although we like alcohol—I include myself in that—and most of us can enjoy it responsibly, there are two big problems. A minority cannot drink responsibly and there is the very real problem, as we indicated in the previous debate, of young people trying to learn how to handle drink responsibly. There is not an easy answer to that. Ultimately, this problem is about ease of availability in terms of price to income and the outlets. Under subsection (2) of the proposed new clause in Amendment 244, at least in those areas suffering most—I would include from my past areas in east London—you could focus on some of the pubs and areas causing problems.
Lord Clement-Jones
My Lords, as a baby boomer myself I will not add to the confessionals this afternoon, but I would say to the noble Baroness, Lady Finlay, that she was clearly a particularly well-behaved student. My recollections—though I think the expression is that if you remember the 1960s you weren’t there—were pretty similar. Despite not having known in advance that they were being grouped, I can see why Amendments 237A and 244 have been grouped. But the devil is in the detail and I prefer Amendment 244, with one rather large and glaring exception to which the noble Baroness, Lady Finlay, referred. Notwithstanding the enthusiasm of my noble friend Lord Shipley, the drafting of a public health duty for a licensing authority is fraught with difficulties. It could cover a huge range of issues, not just issues relating to local A&E and so on but to pricing, siting and marketing of alcoholic products.
Lord Brooke of Alverthorpe
Is the noble Lord aware that the Scottish Parliament has already drafted one?
Lord Clement-Jones
I am extremely aware of that, and for that reason I do not think that it is necessarily a practical way forward. People are drawing on that experience and also thinking that that is not the way forward. I much prefer Amendment 244, which is much more specific. Although I am not a lawyer who travels to south Wales and appears before licensing authorities—I may have been born there but I do not travel there for that purpose—you have to have something which is capable of proper interpretation and clarity. I do not believe that the broad public health duty implied in the first amendment is really the way forward. The second proposed new clause, however, is much clearer.
I want briefly to address the third part of this because I do not understand why subsection (3) is included in the new clause set out in Amendment 244. It is rather extraneous to the general message. I certainly sympathise with bodies like the Association of Convenience Stores, which says that there is no evidence that licensed forecourts are less responsible than any other type of premise. They say also that changes in the market mean that it is vital that a store has alcohol as part of its convenience offer. As the noble Baroness, Lady Finlay, said, if they did not stock it, they would close. The association says that there is adequate provision in this area under Section 176 of the Licensing Act 2003, which already requires forecourts applying for licences to demonstrate that their primary use is not as a petrol forecourt. If petrol sales outweigh other sales, they will not be granted a licence. I do not see how subsection (3) can form a legitimate part of the clause. If something was brought back in a better form, it would definitely be more supportable.
Lord Brooke of Alverthorpe
My Lords, I am pleased to have the opportunity to support Amendment 237A and Amendment 244, tabled by the noble Baroness, Lady Finlay of Llandaff. I will not repeat all the problems we face with regard to alcohol because we are all fully apprised of them. We know also that there is no simple solution, and in that context I look forward to the Government’s alcohol strategy, which I believe is due to be published later in the year. I hope sincerely that it is helpful and that it is not just warm words and little action, which can often happen with strategy papers. But the Government, like my noble friend Lord Soley, have recognised that two immediate and fundamental problems need to be addressed. The first, without any question whatever, is the price of alcohol, and the second is accessibility. We can all put on our rose-coloured spectacles and remember the days when pubs opened at 11 or 12 in the morning, closed at three o’clock, and reopened from five in the evening until 11 at night. Off-licences kept similar hours. In many places in Wales, pubs closed all day on Sunday. There was not the same degree of accessibility.
We are now in an entirely different world, one that since the adoption of the Licensing Act 2003 and subsequent amendments made by the former Government, has seen an escalation in the granting of licences on a wide scale right across the board. I am thinking particularly of off-licences, which have been transformed out of all recognition. We now have access to alcohol in many places, 24 hours a day, seven days a week and 52 weeks of the year. Very few countries in the world are as free as we are, and we have to reflect on whether we have done the right thing.
I commend the Government, as I did at Second Reading, on the steps they are taking to try to rebalance the rights of those who are seeking to get licences and the needs of the community. Over the past decade, problems have increasingly arisen through the use of alcohol. Even though I sit on these Benches, I have no hesitation in saying that the Government are moving the right way. On pricing, there must be a question mark over the extent to which the Government have been bold. I shall leave it at that, but personally, I do not think that they have gone far enough. As time passes, others may come to the same view. On accessibility, again the Government are tightening up the rules related to the granting of licences, but from what I have seen and heard so far, I do not think that they are likely to move fast enough and far enough to deal with the problem.
I shall be a little provocative and say that I am pleased that the Government have revised the fee structure, but I would like to know why they have limited the reimbursement of fees to local authorities simply to the administrative expenditure. Originally we had the use of a licence for a particular purpose, which was limiting. Why do local authorities now not have the freedom to set the licence at a level which is appropriate to the needs of their communities, particularly the health needs of a community when facing difficult problems related to alcohol? I would be grateful for a response. I know that the question is not proper to the amendment, but it is the only place in which I think I can pose it. If we believe in localism, and I have come across substantial support for it in many areas, local licensing authorities should have the freedom to set fees for licences at a level necessary to meet the needs of the community. We increasingly see that health needs are not being met within the context of the licensing regime. Although the new clause proposed in Amendment 237A is general, I strongly support the view that it should be added to the four existing objectives which were drawn up in 2003.
There has been saturation granting of licences in some places. I live in an area of Brighton—I have talked about it previously—where within 100 yards of each other you have two supermarkets and a post office which is no longer a post office for all intents and purposes because it is piled high with alcohol. I have taken photographs of it. Next to it, you have an off-licence as well. The post office has been granted permission to open from 6 o’clock in the morning to 11 at night. The area is immediately adjacent to the most underprivileged area in Brighton—more people are unemployed there and there is more illness there, much of it alcohol and drug-related, than in any other part of the city—yet the post office is selling alcohol from six in the morning to 11 at night.
We now have 11,000 post offices left which are guaranteed to stay in business. I return to the Minister’s point about our changing culture. We shall probably see 11,000 post offices converted over the coming two or three years so that they become nearer to off-licences than post offices. That will change the culture in those areas where they exist. It is happening not just in post offices. Greengrocers are now turning over to selling alcohol in some places. A halt needs to be called. Requests have been made to the chief medical officer in Brighton to do that. The only way, as far as I can see, to tackle this is by having a close look at what is proposed in the amendment. The idea has been adopted in Scotland; we wait with interest to see how they address it. They are looking particularly at saturation, where too many licences have been granted in certain locations, and are going to try to call a halt to that. We should do the same in the rest of the UK.
The one illness that was not mentioned when we talked about the consequences of too much alcohol was diabetes. We have an epidemic of diabetes, much of it related to alcohol. A bottle or can of alcohol may show the units, but what does that convey? It does not tell you how many calories you will consume in that can or bottle of beer, or indeed within a bottle of whisky—God only knows how many calories there are in that. If the Government are to look at this in the longer term, they will have to start addressing some of those issues, because they go much broader than the rather narrow issues that we have been talking about.
I share the view of the noble Lord, Lord Shipley, that the amendment is very challenging and interesting. It is a test for the Government. They gave quite a sympathetic hearing to it when it was dealt with in the Commons. I felt that my side, the Labour side, perhaps for historical reasons, was a little bit soft in its handling of it, so I was pleased to hear the way in which my noble friend on the Front Bench tackled it today. If we are not going to make great progress with it, I hope that we will stiffen up our views before we reach Report on where we want policy on alcohol to go in the future. There is a lot of pressure in this House for change and legislation on drugs. I wish that as much energy was devoted to addressing the really big problem that we have: alcohol. What chance is there of regulating drugs if we cannot effectively regulate alcohol in a way that is in the best interests of the health of our community?
I commend these amendments to the Government. I give notice that it is time for some of us in Parliament to stand up more forcefully than we have in the past in taking on the mighty drinks industry. Given all the wealth that it has behind it, it is David against Goliath in many respects. I hope that I can find a David on the Government’s side.
Lord Clement-Jones
“(a) a person who lives sufficiently close to the premises to be likely to be affected by the authorised activities,(b) a person who has a business interest that might be affected by the authorised activities,(c) anyone representing persons who satisfy the requirements of paragraph (a) or (b),”.”
Lord Clement-Jones
In moving Amendment 237B, I will also speak to whether Clause 106 should stand part and Amendment 239A. As Clauses 106 and 108 stand, the vicinity test for making representations will be removed and any person will be able to object, broadly, to a live music event if they are located in the licensing authority area. A person will no longer be required to be an interested party in order to object. However, there is no doubt that removing the vicinity test could entirely open up the licensing process to an excessive number of people making representations who have no ties to the local area—for example, national campaign groups running a postcard campaign. This could lead to a significant increase in the number of appeals and reviews, increasing the bureaucracy and cost to local authorities and businesses.
As currently drafted, the Bill, while removing the vicinity test, introduces a different constraint in that it restricts participation to those living and based in the local authority area concerned. This could mean that a resident living on the other side of the street could not make representations if they were in a different local authority area. The current state of the clauses in the Bill is far from satisfactory. These amendments therefore seek to define who can make a representation more robustly, restricting it to either someone living sufficiently close to the premises that will be affected by its activities or to an affected business. This will ensure that only those with a local interest are able to intervene. It will ensure, however, that anyone directly affected by licensed premises will be able to make representations, even if they do not live in the local authority area where the premises are situated. This will improve the position of local communities with legitimate concerns about licensed premises and ensure that they are able to have their say.
Clearly, this is a compromise suggestion. It is not clear that the Government have entirely demonstrated the mischief that must be cured by Clauses 106 and 108. This is, in a sense, the clause stand part discussion, Clause 106 being on premises licences and Clause 108 on club premises certificates. As was clear from the consultation process, this proposed removal received a majority negative response. Respondents of all kinds suggested that this proposal could lead to a rise in vexatious complaints and give disproportionate influence to non-local individuals. I believe that of all the consultation proposals, that one received the greatest negative response. The onus of proof is really on the Government to demonstrate that Clauses 106 and 108 should be there in the first place. Thereafter, I hope that they will accept the necessity to amend them. If they demonstrate that, they will demonstrate that they support the amendments that I have put forward.
Viscount Astor
My Lords, I have added my name to the amendment moved by the noble Lord, Lord Clement-Jones, because I am concerned about the drafting, particularly in Clause 106(3)(a), which allows anyone who is “involved in a business”. However, that might be totally unrelated to pubs, clubs, bars or anything like that. What is important is to allow people who live in the local area to have a view. It should not be restricted to local authorities because if you are dealing with the city of London, local authority division might be down the middle of a street. People can live 100 yards away but be in a different local authority. I commend what the Government are trying to do but I am concerned about the wording and how it will be interpreted.
I remind your Lordships that we are trying to keep pubs open in rural areas and, indeed, all around the country. We should not allow interest groups who have no interest and live nowhere near that particular pub to have an influence on whether it should get a licence. It is also important to remind your Lordships that, 20 years ago, 70 per cent of the drinks sold in this country were sold in pubs, bars and clubs with 30 per cent being sold in retails outlets. The reverse is now the case: only 30 per cent is sold inside a pub, club or bar and 70 per cent is sold in supermarkets and other outlets. If we are concerned about excessive drinking, we should make sure that we do not blame those who have only 30 per cent of the market. We must look much more closely at those who provide 70 per cent of the alcohol in this country.
Lord De Mauley
My Lords, the Licensing Act 2003, as currently drafted, allows local residents, businesses or bodies representing them to raise concerns about new licence applications and reviews to existing licences. To make a representation, residents or businesses must be within the vicinity of the premises in question. The determination of a vicinity is made locally by licensing authorities. However, residents or businesses are sometimes uncertain whether they are in the vicinity of a premises. Given that they are unable to make a representation if they are outside the vicinity, this is clearly of considerable concern to some people. As such, as my noble friend Lord Clement-Jones rightly says, we propose in the Bill to remove the definition of “vicinity” from the Licensing Act. This would mean that any person, business or representative body would be able to make a relevant representation to the licensing authority, regardless of their proximity to a premises.
I recognise that Amendments 237B and 239A are intended to restrict those who can object to persons who live sufficiently close to premises or whose business interests might be affected. This means that licensing authorities would still have to determine who lives sufficiently close to licensed premises. The purpose of what the Government propose is to remove any uncertainty for local residents and businesses if they are affected by premises, regardless of their—shall I say—immediate proximity to those premises. If accepted, these amendments would continue to raise uncertainty among local communities. They would also mean that residents and businesses that are affected by premises are unable to make a representation if the licensing authority decides that they do not live sufficiently close to those premises.
My noble friend Lord Clement-Jones was concerned principally about from how far and wide relevant representations may come. “Relevant” means that the representation should specifically be about the likely effect of the grant or variation of the premises’ licence on the promotion of the licensing objectives and, if the representation has been made by anyone other than a responsible authority, is not frivolous or vexatious. The licensing objectives are the prevention of crime and disorder, public safety, prevention of public nuisance and the protection of children from harm. One noble Lord—I think it was my noble friend Lord Shipley—said he understood that an objector must live in the same local authority to object. I can tell him that that is not the case; that is not how the Bill is drafted.
I also recognise that Amendments 238 and 239 are intended to ensure that residents and businesses in adjoining local areas receive more information on licensing applications. Currently, applicants for licences are required to advertise new licence applications in the local newspaper, as well as to display notices at or close to the premises. However, during the consultation entitled Rebalancing the Licensing Act the Government received significant representations from the alcohol industry, asking for the requirement to advertise to be removed altogether. We feel that the existing methods of communication, which require an applicant to advertise in the local newspaper and display notices at or close to the premises, complemented by the new requirement to publish key information on licensing authority websites, will ensure that all persons who could be affected by premises will have access to the relevant information, while balancing the burden on business. For these reasons, I ask that these amendments are not pressed.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. I confess to being rather disappointed because, if anything, he has interpreted the clauses more widely than I had. He has said that they both apply regardless of proximity. That means that although they may have been constrained to some extent by their objections having to be relevant—it is perfectly possible to be relevant—the individuals or organisations involved will not in any sense have to be proximate. That is an extraordinary proposition. We have, perhaps, the example of the noble Lord, Lord Stevenson, of somebody coming down from Scotland and objecting to something in the Edgware Road. This means that some uncertainty is removed, but it seems to me that there is the certainty that a licensed premises is fair game for anybody, which creates enormous business uncertainty for them. Licensed premises—club premises—will essentially be fair game for national campaigns in the future. I cannot really believe that that is the objective of these clauses.
No doubt we will ruminate further on these parts of the Bill and the implications of the abolition of the vicinity test. However, I remain to be convinced that it is a sensible way forward. I beg leave to withdraw the amendment.
Viscount Astor
My Lords, this is an important amendment. The industry is concerned that the changes in the Bill could affect someone’s ability to operate a business because it would allow a review to look at the business in a totally different way from what has been done before, and produce a severe financial impairment.
One should start off by saying that it is not easy to get a licence. It is extremely difficult. You have to persuade the local police and get them on your side. You have to persuade the local authority, all the local interest groups, your competitors and almost everybody else who has a view. It is a not an easy process. It is a high-hat hurdle. It is a major barrier. It is quite right that it should be. As part of that you have to show why various things are necessary. That process is understood by the industry, local authorities and all those who look on it from the outside.
The Government seek to change the evidence test for the attachment of licence conditions by using “appropriate” rather than “necessary”. There is no evidence that local authorities are in favour of this change or that there is any barrier to imposing tough trading conditions. The problem is that the word “appropriate” would allow decisions to be taken on the grounds of subjective judgment as opposed to the actual facts of a case. “Appropriate” is not clearly defined in law. I am sure that my noble friend the Minister will say that “necessary” is not defined in law either. However, it has been defined by various judgments in the courts so that everybody understands what it means whereas “appropriate” has not.
I should remind your Lordships that in these circumstances the only right of appeal is in effect judicial review, which is an incredibly long and expensive process. Will my noble friend explain what evidence there is for promoting this change? What benefits do the Government think will be gained from it? Those have not been properly demonstrated. The Minister in another place suggested that there was pressure for the change, but during that debate and since then the Government have produced absolutely no evidence that there is any pressure to make this change.
The worry about the change is that you might have a responsible operator who has invested large sums of money in a pub or bar, or whatever it happens to be, and is doing exactly what he should do under the law, but somebody reviews his premises under a totally different set of decisions based on an arbitrary view rather than on anything that is evidence-based or is required for the benefit of the local community, and the operator might either have to review how he operates his premises or lose his licence and suffer a substantial loss not only of earnings but of all the capital that he has invested in the business. This is a very important issue—perhaps the most important issue in this whole area of licensing so far as I can see. I hope that my noble friend will give it his usual careful consideration when replying. I beg to move.
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.
Lord Clement-Jones
My Lords, this is a device to elicit from the Government their motives for introducing a barrage of new provisions relating to temporary event notices. We seem to be building up a parallel system through the TENs system. It has worked extremely well. The notices are used extensively by community groups. They are not intended for commercial purposes, but are used for community events, village fetes, charity fundraising events and so on. It would be extremely interesting to hear from the Government why they feel that it is necessary to introduce so many new elements into the TENs system.
It was always designed as a form of flexible licensing for community groups. What is now happening under the various clauses relating to temporary event notices is that we are adding environmental health to the scrutiny process and are adding cost to the regime for local government as well. I do not know whether it is because the Government feel that TENs are being used by commercial operators, but the evidence given to me—I think, in particular, that increased hours during the new year celebrations was cited by the Government in their response to their consultation—has not painted that picture about how they are used. Ironically, it is likely that in any event there will be greater reliance if premises are caught by the late-night levy. There will be a greater use of TENs by commercial premises in those circumstances.
What is the justification for all these changes? What seems particularly odd is this extension: the change from a duration of 96 hours to one of 168 hours under Clause 116 and the increase in the number days from 15 to 21. If anything, one is making them more available for commercial purposes. We are changing from a temporary type of licensing to something much more permanent as far as I can see, so we have a self-fulfilling prophecy. Now we will have more conditions, and if there are going to be conditions, they should be standard conditions, so I have some sympathy with the amendments that follow in this group. I look forward to hearing from the Minister why we have to have more objectives, more bureaucracy and an extension of TENs as a concept in these circumstances. I beg to move.
Baroness Hamwee
My Lords, I do not think my noble friend is moving that the clause stands part of the Bill. I have Amendments 240C, 240E, 240F, 240G, 240H, 240J and 240K in this group. My noble friend mentioned parallel provisions. I think the noble Lord, Lord Hunt, and I have managed a degree of parallelism which probably adds to the confusion, but I think we are heading in the same direction.
In response to my noble friend, I say first that when we get to some amendments later on the subject of New Year’s Eve, I have a lot of sympathy for them. As I understand it, temporary event notices or TENs—I have always known that word in a completely different context—have grown in number far more than was anticipated. Almost 125,000 were used in the financial year to March 2010. They were introduced as a means of minimising the regulatory burden on small, ad hoc events, as my noble friend said, but they have grown somewhat. The Bill proposes that only following a representation from the police or environmental health will licensing authorities be able to insist that relevant conditions from the licence also apply for the duration of the temporary event notice and that regulations will stipulate the process, format and timescales for notifying applicants of the conditions.
I was glad to hear my noble friend’s comment about standard conditions. We know the view of the Local Government Association on this matter. It has briefed noble Lords that a more transparent and less burdensome approach would be for all existing premises licence conditions to apply automatically, apart from those that will be altered by a temporary event notice, such as hours. Licensing authorities should be given the ability to add appropriate conditions to a temporary event notice. Currently, there is no mechanism for adding controls in unlicensed premises. During the Commons stages, the Government responded that TENs would increase bureaucracy. Bureaucracy is not always a bad thing. Some bureaucracy is necessary. Giving authorities an effective tool would give them greater, but not disproportionate, control. Standard conditions would actually reduce bureaucracy.
Secondly, on the time allowance for temporary event notices, I share the LGA’s concern about the extension of the duration to seven days from the current four. Seven days seems to me to be qualitatively different from four. The Bill does not introduce a mechanism whereby unlicensed premises can be conditioned when using a temporary event notice, and the LGA is concerned about the scenario of periods of up to seven days with no conditions on things like closing times, door staff and so on. There would be a qualitative difference, and I think this extension would go too far.
Baroness Browning
My Lords, consultation and guidelines are being drawn up, but I believe that I can give that assurance.
Lord Clement-Jones
Some of the Minister’s explanation of individual clauses was very clear but I found her introduction about the philosophy of what was being done extremely convoluted. I will have to read Hansard at least twice to understand the philosophy behind this. Let me declare an interest. I live very close to Clapham Common. We have lots of temporary events on the common which work very well. The police make objections if they have them, but by and large they are well behaved occasions. Little bureaucracy is involved, but these are quite big events, in many cases involving thousands of people. I am sure that it is true up and down the country that many of these events take place without any problems. However, we seem to be building up a mountain of regulation to deal with a few problems. There is no pandemic of problems associated with temporary event notices. On the other hand, I can see within the new regime, as a resident near Clapham Common, that these TENs will mushroom into week-long music festivals.
I love music and I think it is great, but residents need to be given some consideration when activities take place on what is normally a common, where people walk their dogs and do whatever they do on Clapham Common and other open spaces; historically, I can think of a few other things as well. That said, it is extraordinary that in the end we will probably add to some of the problems rather than making it easier. We are adding a parallel form of licensing.
Baroness Browning
My Lords, I am pleased to say that I already have the answer. I can tell my noble friend that the conditions must be tailored, which I hope meets some of her concerns. However, I will have to write to my noble friend so far as the Localism Bill is concerned. I am not familiar enough with that Bill to be able to make a comparison of how it interposes with this legislation, but I will find out for her.
Lord Clement-Jones
I shall be brief. I thank the Minister for addressing my particular concerns. I am greatly in favour of live music, but in dedicated venues and small venues. Permanent live music on Clapham Common, even for a music lover, would be too rich for my taste.
My noble friend has illustrated that we are in what is almost a vicious circle, although she would probably say that it is a virtuous circle. We are investing TENs with longer time spans; they will be much greater in number; and as a result we have added environmental health officers to the process. We are to have tailored conditions and so on. She spoke about parallels, and we will be in a parallel situation where TENs are an important way of delivering these events. I am not sure that they were designed to do that, but because we are investing them with greater significance we have to introduce all these safeguards and conditions. It may require a second look, because, after all, it is very easy just to keep on regulating without thinking what the whole purpose of the exercise is. As I have said, I shall read the introduction to the Minister’s reply extremely carefully, because I am sure that I shall be able to discern the philosophy behind the measure without any problem.
Lord Hunt of Kings Heath
My Lords, given the late hour and that this is our last group of amendments, I shall not tempt fate by seeking to open a more general debate about alcohol and young people. We will perhaps be able at the start of our sixth day of Committee to debate more general issues under Amendment 240M in the name of the noble Baroness, Lady Coussins.
I do, however, wonder whether we have got right our approach to children and alcohol. While I accept that there are very serious issues around allowing the sale of alcohol to children, there is no doubt in my mind that the crackdown on the sale of alcohol in pubs to older teenagers up to the age of 18 has not really had the desired effect. It seems to have encouraged those young people just to buy or get booze and drink it on the streets, whereas many 16 and 17 year-olds were clearly much better off under supervision in licensed premises. I worry about the advice that organisations such as the Royal College of Physicians have again given to parents about alcohol and young people. It seems so unrealistic as to lack any credibility. I do not expect the Minister to answer these substantive questions; I shall just say to her that I am not sure that either the Government of whom I was a member or hers, or many of the bodies involved, have taken a realistic attitude.
The amendment brings us back to a debate that was held in the other place, where there was a vote in Committee. It suggests that among the penalties available it might be useful to have a training order. Where appropriate, it would enable those persons who sold alcohol to undergo training and help to ensure that the behaviour in question is not repeated. I understand that there is considerable support for this proposal. I would be interested to know whether the Government, in the light of the debate in the other place, have given some further thought to this matter and consider that it might be appropriate. It is not a substitute for other penalties; it is just another option that might be adopted. I beg to move.
Lord Clement-Jones
My Lords, I support the amendment of the noble Lord, Lord Hunt, and I shall speak to Amendment 240N, which has a similar concept, and Amendment 240L.
Training orders would be a more proportionate way of addressing instances of underage selling where there has been no intent to do so. They would provide a positive alternative to a fine or a closure order and give an additional discretion to the authorities. Under Amendment 240N, a training order would require a business to close for a period of 24 hours to train staff in their legal obligation not to sell alcohol to those aged under 18 and on the importance of checking proof of age. There would be a cost to business in terms of lost revenue but the staff would still be paid, which would not be the case in the event of a closure order. Training orders would provide a remedy that would address the issue and provide a long-term solution. At the same time the business concerned would still suffer the penalty of a temporary closure, resulting in loss of sales for the period of the order. Both Amendment 240KA and Amendment 240N are to be commended.
Amendment 240L is rather more radical. It would remove the proposed extension to closure notices. A closure of more than 48 hours could have a severe impact on any licensed premises and their staff, not least in the current difficult economic climate. The current system has, I am reliably informed, worked well, and it is unlikely, the licensed trade tells me, that many premises would accept a notice to close for longer than 48 hours but would instead opt to go to court.
The need for and benefits of extending the current norm of 48 hours is therefore questionable—certainly the upper two-week period, 336 hours, would seriously damage businesses, particularly small hospitality businesses, which have been among the hardest hit by the recent recession. A two-week closure would affect the income not only of the business itself but also of its employees who, in most instances, would not be paid. Such extended closures could be justified only where the underage sale was made with intent; otherwise training orders, as we have discussed, as proposed by Amendments 240KA and 240N, would be a more effective and fairer solution.
No one would condone deliberate sales to those who are under age. However, a closure notice extending to 336 hours is an extraordinarily draconian proposal. I hope that the Government will accept that many breaches are not with intent but are inadvertent; and that where staff need proper training the concept of training orders is a more constructive way forward.
Lord Shipley
My Lords, I make the fairly obvious point that training of staff should apply before people take up a job. Training orders cannot just be applied for persistently selling alcohol to children. “Persistent” implies several occasions. Surely a training order should apply from the first offence. It is a small but important point that training should apply at the beginning of the process, not after persistently failing to abide by the law.
Police Reform and Social Responsibility Bill
Lord Clement-Jones Excerpts(13 years ago)
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Lord Clement-Jones
My Lords, I add my congratulations to all of today's maiden speakers. We have heard some brilliant and moving speeches today. Most speakers have concentrated their remarks on Part 1. I am in complete agreement with the views of my noble friends on the issue of elected police commissioners, but I focus my remarks on the extensive changes proposed to the Licensing Act 2003 under Part 2, like the noble Lord, Lord Brooke.
The genesis of and authority for the current proposals in Part 2 are contained in the section of the coalition agreement headed “Crime and Policing”, and the statements:
“We will overhaul the Licensing Act to give local authorities and the police much stronger powers to remove licences from, or refuse to grant licences to, any premises that are causing problems. … We will permit local councils to charge more for late-night licences to pay for additional policing”.
There is also, however, a statement later in the agreement:
“We will cut red tape to encourage the performance of more live music”.
That encouraged me earlier this year to introduce the Live Music Bill as a Private Member’s Bill.
I have been in strong agreement with those who want to stamp out alcohol abuse in our town centres. I live in the inner city and share many of the views of the noble Lord, Lord Brooke, but I have strong concerns about some of the provisions in the Bill, some of which relate to the impact on the performance of live music, but others of which are more general in nature concerning the regulatory burden they impose. Although some aspects of Part 2 are very welcome, its provisions seem to go well beyond the bounds of the coalition agreement.
Let me take some of the proposals in turn. First, there is the vicinity test. The current vicinity test for making representations will be removed, and any party will be able to object to a live music event if they are located in the licensing authority area. A person will no longer be required to be an interested person in order to object. Why? What mischief has been detected which must be cured by these provisions? As was clear, the proposed removal received a majority-negative response in the consultation. Respondents of all kinds suggested that that proposal could lead to a rise in vexatious complaints and give disproportionate influence to non-local individuals.
Secondly, in Clause 110, entitled, “Reducing the burden: premises licences”, we have the proposed reduction of the evidence required for the attachment of licence conditions, so that they are “appropriate” rather than “necessary”. During Committee in the other place, the Government justified the lowering of the evidence test from necessary to appropriate on the grounds that some local authorities feared that a particular condition or step that they sought to take would not be regarded as necessary. They admitted, however, that support for the measure was based on anecdotal evidence. Surely that is insufficient grounds on which to base a change of this nature, which will fundamentally alter the Licensing Acts.
Why should we reduce the evidence base for conditions so that the need for them becomes a more subjective matter of opinion? That will only lead to conditions being challenged more than currently, resulting in an increased burden on licensing committees, the courts and licensed premises. The licensed trade believes 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?
Then there is the question of objection to temporary event notices. Previously, the police could object only on crime prevention grounds. Now, they and the environmental health authorities will be able to object on the basis of any of the four licensing objectives, and licensing authorities will be able to impose conditions. Temporary event notices are largely used by community groups. Allowing objections to temporary event notices could inadvertently affect a huge range of events, such as community events, village fetes and charity fundraising events. Where is the justification for these changes? Where is the evidence that these additional powers of objection are needed? Are we just creating more bureaucracy for community groups for no purpose? What price the big society and local initiative?
Then we have the early morning restriction orders. The ministerial foreword and the Government’s response to the consultation on the Bill recognise and acknowledge that the majority of premises are well run businesses. Then we have the early morning restriction orders that contradict that, in so far as businesses that have applied for and been granted hours beyond midnight—until 1 am or 2 am, for example—will be penalised through no fault of their own if such orders are imposed. They will simply be swept up in a requirement to cease to trade at midnight.
What exemptions will there be from EMROs? It is important that such exemptions also recognise best practice and social responsibility initiatives, rather than being solely based on premises type. This would ensure that well run businesses that would not otherwise qualify for an exemption are not being unduly penalised by the provisions. Such a blanket measure in itself risks large numbers of customers coming out on to the street at the same time, just like the bad old days. Would it not be more practical to tackle those premises which are the source of the problem rather than penalising responsible premises?
I move on to the late night levy. A large number of trade organisations are particularly concerned about the untargeted nature of the proposed levy for late night premises. The power can only be applied across a licensing authority district as a whole, rather than a specific area, and its untargeted nature means that many responsible businesses will be caught.
A late night levy can be imposed irrespective of whether a bar is a source of disturbance. Ultimately, it is unfair that any licensed premises operating in a responsible manner should have to pay such a charge when the best course of action would be specifically to tackle the irresponsible operators, or indeed individual members of the public who cause problems. Is it not patently unfair, as was pointed out in Committee in the other place, to impose a charge on a business which may be 20 miles away from the source of the problem? As the trade associations point out, it is vital that there are appropriate exemptions and discounts on the levy for recognised best practice and social responsibility schemes.
Finally, businesses in the sector are concerned about the cost implications of late amendments tabled by the Government on fees—a matter referred to by the noble Lord, Lord Brooke—without any adequate explanation for their decision or impact assessment. In the event that fees are to be set locally by licensing authorities, there should be a national cap on the levels that may be charged. A precedent for this is contained in the Gambling Act 2005 with regard to a cap on fees for gaming licences, and it appears to have worked well.
My overriding concern is that all these proposals will add considerably to the regulatory burden of business without a corresponding impact on crime prevention.
The Association of Licensed Multiple Retailers estimates that the average cost per pub will be in the order of £2,000 to £5,000, but this could double when reform of annual fees is taken into account. It complains, justifiably, that this is yet another cost burden imposed on the trade at a time when the Government are seeking to encourage growth and job creation. The measures introduce significant additional costs for those trading responsibly beyond midnight in particular, and introduce uncertainty by increasing the likelihood that licences will be refused or reviewed with no account taken of their previous trading history or their good relationship with the community. Indeed, as the Government’s own regulatory impact assessment makes clear, the net effect of these reforms will see licences refused, revoked and additional conditions imposed, with more restrictive outcomes of appeals and hearings.
What evidence is there that all this extra regulation is needed? Are we not meant to be a deregulatory Government? Instead it will significantly add to the burden of business. I took the liberty of looking at the business department’s website to see how the “one in, one out” rule applied. I do not see where the “one out” comes in for every regulation imposed by this Bill. I wait to be enlightened by the Minister, but is not this very Bill, in the way it has been put into effect—unless the Home Office is exempted in some shape or form from the need to deregulate—contrary to government policy? I very much look forward to hearing the Minister’s response to that.