Police Reform and Social Responsibility Bill

Lord Stevenson of Balmacara Excerpts

Thursday 14th July 2011 Lords Chamber

[Lord Brooke of Sutton Mandeville]

My Lords, my noble friend Lord Clement-Jones and the Minister will recall that I spoke on this matter in Committee. I have no intention of running the risk of prolonging the debate by repeating what I said on that occasion, but nothing that has happened since the previous stage alters in any way the views I then expressed. The only thing I would say in a wholly friendly manner to my noble friend Lord Clement-Jones is that I used the human rights argument on a series of occasions during our debates on the Licensing Bill in 2003. I have to say, in a manner which I hope he will not find too discouraging, that on every single occasion the Front Bench of the then Government shut me up and told me that I did not actually have a case to argue.

[Lord Stevenson of Balmacara]

My Lords, I am a bit intimidated by the thought that I might have to defend not only the point that we are talking about today but the whole panoply of human rights law, but perhaps we can duck that for now. As has been mentioned already, we had a good discussion on these points in Committee and we do not need to go over them. What is disappointing is that, as has been said, we do not seem to have moved on since then. We felt that the Minister’s responses to the original discussion were a bit lacking in the sort of detail required to be convincing, but it would have helped if we had been able to have sight of the guidance she promised. The guidance has not appeared, and therefore we are not much further forward. I hope that the Minister will be able to help us today, but if the noble Lord, Lord Clement-Jones, wishes to seek further support from this Bench, we would certainly be there behind him in the Lobbies.

[Baroness Browning]

My Lords, for some reason we seem to be in a “vote early and vote often” mode today. These amendments seek to remove three clauses from the Bill that lower the evidential threshold that applies to decision-making by licensing authorities. The clauses replace the requirement that licensing authorities should take actions that are “necessary” with the requirement that their actions are “appropriate”. I do not want to engage the House too long on this debate because we would end up rehearsing all that was said in Committee, but I should say that I do not think that the word “convenient” is a substitute for “appropriate”, although I suspect that he was being rather tongue-in-cheek when he said that.

Lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of licensing objectives. The four licensing objectives will still apply. My noble friend Lady Hamwee suggested that I was not clear enough about this in Committee, so I reiterate that the four statutory licensing objectives still apply. However, lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of the licensing objectives.

I am most grateful to my noble friend Lord Clement-Jones for advising me in advance of his concerns. On the “necessary” test and the importance of it being compliant with human rights law, the statutory test of what is appropriate as the basis on which licensing authorities must make decisions—alongside clear guidance to those authorities as to what is meant by this threshold, and the availability of statutory rights of appeal for licensing applicants and others affected by licensing decisions—ensures that the ECHR rights of those affected by licensing decisions are safeguarded. My noble friend prayed in aid his experience of previous legislation in this area. The requirement that an interference with ECHR rights must be “necessary” is a concept that has been developed in the context of human rights law and is not directly comparable with the meaning of “necessary” as it currently appears in the Licensing Act 2003.

My noble friend suggested that the only right of appeal against licensing decisions, including the imposition of conditions, is judicial review. That is not correct. Section 181 of the Licensing Act 2003 already provides for a statutory right of appeal to the magistrates’ court against most decisions by licensing authorities, including decisions on the granting or revocation of a licence and the conditions attached.

I must also inform the House that although it has been suggested that the Local Government Association is against these proposed changes, that is not the Government’s understanding. Indeed, in response to our consultation on rebalancing the Licensing Act, the LG Group said that it “broadly welcomes this proposal”.

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Moved by

[Lord Stevenson of Balmacara]

305ZB: Clause 123, page 85, line 17, at end insert “, and
( ) the costs of social services and trading standards when discharging their functions as responsible authorities under this Act”

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[Lord Stevenson of Balmacara]

My Lords, we discussed this matter in Committee and we want to probe further whether the Government have moved in their thinking. We welcome the Government’s move through Clause 123 to allow licensing authorities the ability to set fees locally on the basis of full cost recovery. Operating the licence system since 2005 has cost council tax payers over £100 million more than they anticipated due to the current, centrally set fee structure, which does not allow licensing authorities to set cost-neutral local charges. Given the economic climate, there is a real imperative to allow cost-neutral fees to be set as soon as possible. However, as we discussed last time, there is a drafting error within Clause 123, which would mean two-tier authorities not being able fully to recover all the costs associated with licensing. This was debated in Committee. When the Minister replied, he acknowledged that, as drafted, the Bill would exclude the relevant costs of trading standards and social services departments and that, even though they were discharging duties under the Licensing Act, they would not be able to recover them. He concluded by saying:

“I see sense in the intention of [the amendment] and, if I may, I shall reflect on it further”.—[Official Report, 16/6/11; col. 911.]

The purpose of the amendment is to press the Government for their response on this issue. I hope that they have some good news for us.

[Baroness Hamwee]

I support the amendment. I reacted rather to the suggestion that what is a marginal cost is therefore almost irrelevant in the case of the authorities affected. I, too, look forward to hearing the outcome of the reflection.

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[Baroness Hamwee]

My Lords, I think that the noble Lord opposite and I would have heard if there had been a discussion. I put that rather gently but firmly.

[Lord Stevenson of Balmacara]

There was, I think, a hint of menace in what the noble Baroness was saying. She was leaning forward slightly, and it was well judged to deliver that blow.

The LGA has indeed been concerned about this issue and has circulated documents widely which address the issue and make the main points that I repeated in the discussions earlier. It has also made it clear that it is very concerned about this matter. Although the Minister said that it was a marginal cost, every pound is important to local government. It is unfortunate that the Government have said that the cost of the bureaucracy of this might outweigh its benefits when those who are responsible for delivering it say that they want it to happen.

The Government are hiding under the question of bureaucracy. They promised a very important principle—that there would be a full cost recovery basis for licensing. They have gone so far down the line but they are not prepared to go the further stage. This is a disappointing result and we would like to test the opinion of the House.