Licensing Act 2003: Post-Legislative Scrutiny (Licensing Act 2003 Report)

Lord Foster of Bath Excerpts

Wednesday 20th December 2017 Lords Chamber

[Lord Foster of Bath (LD)]

My Lords, I too served on the Select Committee and wish to thank the noble Baroness, Lady McIntosh, for both chairing the committee and securing this debate. I also thank the excellent staff and advisers who served us so well and the other members of the committee, from whom I learned a great deal.

Our task was a difficult one, which was made more complicated by the large number of amendments that have been made to the legislation since it came into force. Indeed, further amendments were being debated as the committee was sitting. We also had to consider many other changes such as the one raised by the noble Lords, Lord Mancroft and Lord Smith, and the noble Baroness, Lady Watkins—namely the changes to the way that alcohol is now consumed, with the closure of thousands of pubs and the significant growth of off-trade and online purchasing. All this made it difficult to assess the impact of the legislation.

This difficulty is illustrated by the statistics. Alcohol-related violent crime has decreased but—as the noble Lord, Lord Brooke, so powerfully described—alcohol-related illness has increased. Nevertheless, the committee made some powerful suggestions for future action. The Government’s much-delayed response was somewhat disappointing—it was certainly a mixture of disappointing and defensive, as the noble Lord, Lord Blair, put it. I hope that, as a result of today’s debate, the Government will at least be prepared to reconsider their response to some of our recommendations. Nobody can claim that all is well and no further action is needed. The worrying health statistics alone should give us cause for concern.

We should also be concerned by many other issues, including the failure of current legislation to apply airside and port side, the consequences of which were described by the noble Lord, Lord Blair, and the noble Baroness, Lady McIntosh; and the inadequacy of resources to police and enforce existing legislation. Surely if our proposal to localise licence fee-setting is not to be accepted, the Minister should at least accept the well argued for need for a flat-rate increase. We should also be concerned about the absence of a useful national database of, for example, personal licence holders.

We should be especially concerned by the significant dissatisfaction we found with the licensing application and appeals processes. The licensing application procedures were variously described to us as “a lottery” and “a pantomime”. We heard of “standards falling far short”; “meek and mild” legal advisers; responsible bodies not engaging effectively, and often not at all; a lack of transparency, with decisions being made “behind closed doors”; and inadequate councillor training. We heard all too frequently of the lack of co-ordination between licensing and planning. We concluded that there would be considerable merit in the licensing application procedures mirroring those for planning applications, which, as we heard, include professionally qualified officers; a requirement for officials to proactively gather and analyse the views of interested people; and the preparation of a wide-ranging pre-meeting report offering detailed analysis, professional judgment and legal advice. We argue that, combined with improved training, that should all be part of the licensing procedures. Better still, as so eloquently argued by the noble Lord, Lord Davies, planning and licensing should be combined.

Although the Government have rejected that proposal, I welcome their recognition of the need for improved training, for greater synergies between planning and licensing, and for stronger guidance on how licensing hearings should be conducted. I hope that in her winding-up speech the Minister will provide details of the action to be taken and the timescales involved. Will she also do the same for licensing appeals, given the Government’s acceptance of the committee’s concerns about those procedures?

Of course, what emerges will lead to changes not to legislation but to guidance. So it is particularly disappointing that the Government have so easily dismissed the committee’s call for a return to consultation on and parliamentary scrutiny of draft guidance. The Government argue:

“The guidance is updated to reflect legislative changes; as these are factual changes it is not necessary to carry out a formal consultation”.


But this argument simply does not bear scrutiny. In their response to the committee’s report, the Government said that,

“there are a significant number of recommendations”—

at least 12 by my count—

“that the Government agrees will help improve the operation of the Act, for example clarifying points of practice for licensing committees by amending the statutory guidance”.

These are not simply “factual” or resulting from “legislative changes”, but rather—because, after all, this is what guidance is for—they will reflect and interpret legislation, improving, as the Government put it, the operation of the Act.

My noble friend Lady Grender, for instance, will wish to scrutinise the changes to guidance in respect of simultaneous temporary event notices given for adjacent plots of land. Like the noble Lord, Lord Shinkwin, I was deeply disappointed by the Government’s rejection of our pragmatic proposals on disabled access, and I know that my noble friend Lady Thomas of Winchester, who is keen to see more licensed premises engage with the problems of access for people with disabilities, will wish to scrutinise any changes that arise following the now promised further consultation. Where the Government offer new interpretations of legislation, there should be consultation and parliamentary scrutiny. I hope that the Minister will agree to look again at this decision.

In passing, since some of our recommendations are to be affected by changes to the LGA handbook, I ask for details of this mysterious publication and the status it has or will have.

The committee’s report covered numerous other issues, but I finish by touching on just one. Despite the undoubted benefits of my noble friend Lord Clement-Jones’s Live Music Act, in which I played a small part in the other place, live music venues and other licensed premises still face significant challenges with, for example, 35% of music venues closing in the last decade. The committee considered one measure that could help: the introduction of a full “agent of change” principle into planning and licensing law. It has already been introduced for permitted developments, such as the change of an empty office building to residential use. But with music venues facing closure as a result of planning decisions, the committee proposed the introduction of the agent of change principle for all new developments. Since the Government’s consultation on such an approach ended over eight months ago, will the Minister update the House on progress? Will she tell us whether she supports the Bill from John Spellar MP—it has cross-party support—which seeks to put a full agent of change principle on a statutory footing?

Members of the committee and other noble Lords have raised important points and posed numerous questions for the Minister. Like them, I look forward to her response. I again thank the noble Baroness, Lady McIntosh, for chairing the committee and securing today’s debate. I end by echoing the Christmas greetings of the noble Lord, Lord Brooke, to one and all.