Policing and Crime Bill

Baroness Deech Excerpts

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

Moved by

[Baroness Deech]

210: After Clause 122, insert the following new Clause—
“General duties of licensing authorities
(1) Section 4 of the Licensing Act 2003 (general duties of licensing authorities) is amended as follows.(2) After subsection (2)(d) insert—“(e) compliance with the provisions of the Equality Act 2010.””

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[Baroness Deech (CB)]

Amendment 210 is in my name and the names of the noble Baronesses, Lady Thomas, Lady Pitkeathley and Lady Campbell—all former members of the Lords Select Committee on equality and disability, which reported in March this year. The report found many areas of transport, employment, education, communication and law enforcement failing in their impact on disabled people. We made recommendations that were carefully crafted to be cost neutral, or very inexpensive, and that would ensure a fair deal for the growing number of disabled people. Very few of our recommendations involved changing the law, but this is one of them. It is a simple, economic and transformative amendment, central to our recommendations, which would go a long way to adjusting our living environment to the needs of disabled and elderly people.

Licensing authorities have a duty, under Section 4 of the Licensing Act 2003, to promote, in their duties of inspection and licensing,

“the prevention of crime and disorder … public safety … the prevention of public nuisance; and … the protection of children from harm”.

Amendment 210 would add a fifth enforceable duty, namely compliance with the Equality Act. In taking evidence from disabled people and those involved with them, the Select Committee uncovered a weakness in enforcing existing duties, and at the same time found a way to improve life for disabled people and all of us as we get older. In their response to our report, the Government said that since the Equality Act already applied to businesses and employers, no more was needed, and that they were holding discussions with the hospitality industry to promote increased accessibility for disabled people. It is true that equality law applies across the board, but the issue is enforcement where equality is being denied. Sadly, it is clear that mere guidance and good will do not do the trick.

With this amendment, licensing authorities could require, for example, old and existing buildings to be made accessible. When they are out inspecting and find disabled facilities not being provided as they should be, they could review the licence. They could issue a warning or, in the last resort, remove a licence from an entertainment premises that refused customers because of their disability—or indeed sexuality or race—or charged extra to disabled visitors. At the moment, the licensing authority can only remind owners of premises of their duties under the Equality Act, and they have no teeth. Where the situation is not remedied, this amendment would shift the enforcement burden away from the individual disabled person or the person discriminated against—who, under existing law, have to take legal action on their own—to the local authority. It is self-financing. The functioning of this amendment would not depend on taxpayers’ money.

This extra condition in the Licensing Act would give local authorities in every sphere the power to say, “We are not going to licence you unless we see the premises are fit, or as fit as they can be, for disabled persons’ use”. The Select Committee learned that the National Association of Licensing and Enforcement officers would support this. Businesses that already comply would have nothing to fear from it. Indeed, some already behave as we would all wish. For example, Newham Council denied planning permission unless all new stations in Newham were step-free. By way of contrast, the committee heard evidence that new shared spaces and pedestrianised shopping areas were designed sometimes without regard to accessibility by disabled people. It is no answer to say, as Ministers tend to, that guidance to the authorities is all that is required. Guidance is no substitute for enforceability.

The United Nations Committee on the Rights of Persons with Disabilities carried out an inquiry into the condition of the UK’s disability programmes and reported on 6 October. The United Nations committee condemned the lack of cumulative assessments of the impact of cuts and other recent policies affecting disabled persons. It called on the UK to ensure that in the implementation of legislation, policies and programmes, special attention is paid to the most vulnerable disabled people and it requires the UK to report back on the steps taken to comply with the United Nations Convention on the Rights of Persons with Disabilities. That report is not out of date, it is bang up to date. Amendment 210 would not only go a long way to achieving the aims of the Lords Select Committee but would assist the Government in making a decent response to the United Nations committee and avoiding international opprobrium. I beg to move.

[Baroness Thomas of Winchester (LD)]

My Lords, my name is also on Amendment 210 which, as the noble Baroness, Lady Deech, has said, is one of the recommendations of our committee. I am particularly speaking about how the amendment would apply to existing, rather than new, premises. Before I go any further, I should say something about the Select Committee on the Licensing Act. I do understand what is being said but my mind goes back to the words of a pop song of the 1960s:

“Catch a falling star and put it in your pocket

Save it for a rainy day”.

This might be, “Catch a passing Bill and put it in your pocket”. That is an important point: maybe some Members do not quite appreciate how difficult it is to get Bills into the legislative programme.

The vague terms used by the then Secretary of State for Education and Minister for Women and Equalities in her evidence to the committee about spreading good practice rather than legislating in this area simply will not do, as it does not work. The licensing solicitor at Sheffield Council, Marie-Claire Frankie, was clear when she gave evidence to our committee:

“What could strengthen the licensing authority and give them the ability to enforce it is to make a fifth objective related to equality”.

She said specifically that a friendly word in somebody’s ear at the premises, even if followed up by a letter from the local authority, just did not work. She went on:

“For old and existing premises that transferred over before the Licensing Act, there is not anything that we can go back and revoke licences on or anything that we can add conditions on. Because of the licensing objectives, there is no way of getting it before a committee because they are not breaching crime and disorder; they are not committing public nuisance; they are not publicly unsafe; and they are not endangering children. If there was an additional objective relating to equality, there would be a mechanism to get it before a committee, to enable the local authority and the licensing authority to do something”.

We are talking only about reasonable adjustments, not a mandatory lift, say, if a small club, restaurant, pub or other entertainment venue is entirely upstairs. No one wants premises closed down, but what those of us who are disabled want is as much accessibility as possible, and we do not want to have to go to court to get such access. I hope the Government will accept the amendment.

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[Lord Clement-Jones]

I shall read her response, but it was very short.

[Baroness Deech]

My Lords, I am grateful to the noble Lords who supported our Amendment 210, but clearly I am disappointed with the Government’s answer, which has not moved from the response issued several months ago, before the change of Administration. I thought that we were convinced: given that this Government have a target of halving the unemployment rate of disabled people and that the Prime Minister said in her first statement on taking office that this Government should work for everyone and allow everyone to reach their potential, surely they must move on this.

I have not heard a single argument to undermine the thrust of Amendment 210. The background is that disabled people gave evidence that the Disability Discrimination Act was a much better tool than the Equality Act, because the latter puts all the protective characteristics together and thus, although well-meaning, does not give sufficient weight to the needs of disabled people, who need a bit more than just equality.

Moreover, I take issue with the Minister’s saying that the amendment would simply duplicate the Equality Act. It does no such thing. First, it shifts the burden of enforcement away from the individual who is discriminated against to the local authority. That is the main aim. A pledge, I am sorry to say, is insufficient. If the entertainment industry gives a pledge, or if we all pledge to pay tax or obey immigration law, I do not think any Government would say, “A pledge, that’s just fine”. As has been proven, there are areas where one needs the teeth of the law. I appeal to the Minister: this Government should not appear hard-hearted. The Select Committee is offering them a way to respond to the United Nations’ inquiry which has so severely criticised this country’s approach to the needs of disabled people.

I have heard no reason why Amendment 210 should not pass. I cannot believe that the Licensing Act 2003 Committee, thorough though it is, will unearth any more than the Select Committee on equality and disability did. Once more, I appeal to the Government to accept the amendment and if they do not, I will emulate the advice given by the noble Baroness, Lady Thomas, and pursue this star all the way to the other end of the rainbow.

[Lord Brooke of Alverthorpe]

My Lords, when I was speaking, the Minister was nodding so much that I thought she was agreeing with everything. I now realise she was trying to fend off her cold, but I was pleased to hear that the Government are not unsympathetic to the health objective in Amendment 211, and I am aware of the difficulties of putting this in place; it is not easy. I am also aware of the work being done by Public Health England and others in association with the Home Office. I look forward to that materialising and hope it will be presented to the Select Committee.

I did not get an answer to my point about Manchester, to which I thought she was nodding. May I speak to her separately about that away from the Chamber, when we might try to explore using that new initiative for something quite different? I will look carefully at what she had to say on the children’s amendment and decide what further action, if any, I can take.

[Lord Clement-Jones]

My Lords, I may have blinked and missed the extended response I am sure the Minister gave. However, as I recall, it was simply that we do not need another licensing objective. Will she consider more carefully the question of whether other things could be done to encourage licensing authorities to take cultural matters into consideration in licensing, and in particular offer to meet those with an interest in this area, such as UK Music and the Music Venue Trust?

[Baroness Deech]

I beg leave to withdraw the amendment.

Amendment 210 withdrawn.

Policing and Crime Bill

Baroness Deech Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Baroness Deech (CB)]

My Lords, I did not put my name to this amendment because there were enough people already, but I used to teach family law, including the law of marriage. In this country, it is very easy to get married in a registry office or in a properly registered religious place. You can get married in a hotel if you want to or you can have a civil partnership. There are all sorts of official unions that you can make very easily, but the worst of all possible worlds is to be duped into believing that you are married in a religious ceremony and then find that you are not, because you lose any protection that English law gives you, while at the same time, stereotypically, your husband—if he is really your husband—can abandon you or take another wife.

This is not just a question of running parallel systems of law: it is about the protection of women and the need to preserve transparency and regularity in people’s marital status. All that is necessary is for more mosques to become registered as proper places of marriage, just in the way that synagogues are, and all would be resolved. I see no arguments against this amendment at all. It is overdue.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I have listened carefully to the arguments made by the noble Baronesses, Lady Cox and Lady Deech, my noble friend Lady Buscombe—who made an excellent speech—and the noble Lord, Lord Alton. As has been said, the noble Baroness, Lady Cox, has done so much to raise in this House the problem of marriages that are not legally binding and that therefore do not carry the legal rights and responsibilities of a legally binding marriage. I recognise that she has spoken to many women in this situation and has sensitively presented their evidence to your Lordships this evening and on other occasions. There is particular cause for concern if one or both of the parties is unaware of their lack of rights or coerced into a marriage.

There is a strong tradition of religious marriages in England and Wales, with a long-established right that couples are able, in their place of worship, to enter into a marriage that is legally contracted, provided that the requirements of the law are met. Some people, for religious or other reasons, have preferred to enter into a marriage that is not capable of legal recognition. To make it illegal to conduct, or enter into, religious marriages that are not legally contracted is likely to be an overly complex solution and one that restricts personal choice. It is also unclear how many unregistered religious marriages would take place in breach of any change in legislation, since, by their nature, public notice of these marriages would not be given. I am sure that noble Lords appreciate the complexity of legislating in people’s private and religious lives.

We are conscious that there are complex issues behind religious marriages that are not legally valid, including where people use a religious ceremony to give recognition to an additional spouse, and so we do not consider that any one approach to Muslim or other faith communities can work in isolation. Of course, we are also aware of concerns that some women can be put under pressure to use the services of religious councils, including sharia councils, to arrange matters on the break-up of the relationship and that these women are not always treated equally when recommendations are made.

One of the issues that the noble Baroness highlighted was that of child custody, a matter raised by women to whom she has spoken. In fact, it is not the case that women have few or no rights in this matter, although they may well not be aware of their rights. In England and Wales, where there is any dispute between parents about arrangements for their children, either parent may apply to the family court for one or more types of order under the Children Act 1989. Most commonly, this will be a child arrangements order determining who a child is to live with or spend time with, and where and when this is to happen, referred to respectively as custody and access in many other jurisdictions. These proceedings are free-standing. This means that a parent is entitled to make an application to the court at any time, simply by virtue of being the parent of the child concerned and regardless of the status of their relationship with the other parent. There is no distinction for this purpose between legally married parents, unmarried parents, parents in a religious marriage that is not legally binding, parents who are otherwise cohabiting or, indeed, parents who are living apart.

On the issue of polygamy, noble Lords will be aware that polygamous marriages cannot be legally contracted in the UK. Attempting to enter into a polygamous marriage under the law of England and Wales is a criminal offence which carries a maximum sentence of seven years in prison. Nor is it possible for anyone domiciled in the United Kingdom to enter into a polygamous marriage abroad. Where a polygamous marriage is contracted within the law outside the United Kingdom between parties neither of whom is domiciled in the United Kingdom, it will be recognised by the court. The Government continue to support the law preventing polygamous marriages from being entered into in England and Wales.

The Law Commission has also given initial consideration to the issue of religious marriages that are not legally valid. It published its scoping study in December last year setting out the parameters of a potential review of the law concerning how and where people can marry in England and Wales, following consultation with a wide range of religious organisations and other interested parties. The scoping study concluded that this was one of a number of issues that might be ameliorated through a fairer and more coherent framework for marriage. The Law Commission also considered that offences relating to the celebration of marriage should be reviewed. It would not make sense for the Government to introduce a new criminal offence, such as that proposed by this amendment, without evidence of the scale and nature of the problem and without consideration of how the new offence would fit within existing marriage law.

The Government are carefully considering the Law Commission report and will respond in due course. We will also wish to consider the issue of unregistered religious marriages in light of the findings of the independent sharia review, launched in May by the current Prime Minister. The Government share the noble Baroness’s concerns and take them very seriously indeed. These concerns are central to the independent sharia review and involve the equalities, justice and faith and integration agendas across government. I thank the noble Baroness for raising again this important issue and the very real consequences for people’s lives.

My noble friend Lady Buscombe asked how many sharia councils there are across Europe. I do not have a number; I will have to go away, look into it further and write to my noble friend. I trust that the noble Baroness, Lady Cox, will understand the need to wait for the Government’s response to the Law Commission report and the sharia review and, on that basis, will withdraw her amendment.

Policing and Crime Bill

Baroness Deech Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

Moved by

[Baroness Deech]

173: After Clause 126, insert the following new Clause—
“General duties of licensing authorities (No.2)
(1) Section 4 of the Licensing Act 2003 (general duties of licensing authorities) is amended as follows.(2) After subsection (2)(d) insert—“(e) securing accessibility for disabled persons.””

[Baroness Deech (CB)]

My Lords, I am sorry to say that the noble Baroness, Lady Campbell, whose name is also on this amendment, is unwell. Her eloquence will be sorely missed this evening.

These five words which the amendment would insert would provide a simple and effective improvement in life for disabled people, and would fulfil one of the key recommendations of the Lords Select Committee on the Equality Act 2010 and Disability, which I have had the privilege of sharing. This amendment is a narrowed-down version of Amendment 210 in Committee. It is supported by the Access Association and the Equality and Human Rights Commission. It originated with a suggestion put to the Select Committee by a spokesperson for the National Association of Licensing Enforcement Officers, who has also written in support. The Select Committee on the Licensing Act 2003 has no objection to it.

It is not just about disability; it is about all of us as we get older. It is about mainstreaming accessibility into everyday life. The ability—indeed, the right—to participate in various everyday areas of life can depend on the ability to access public spaces and buildings. Moreover, under the United Nations Convention on the Rights of Persons with Disabilities, the UK bound itself to ensure that disabled people enjoy the rights to equal access set out in its Article 9. The Government have been criticised by the inquiry set up under that convention. Here is a way to show that that criticism is unjustified.

One-quarter of the disability discrimination-related inquiries to an Equality and Human Rights Commission helpline relate to failures to make reasonable adjustments. That is a big problem, and it is clear that some service providers do not understand what they have to do. If the amendment were passed, applicants for licences would have to include consideration of the requirements of disabled people from the outset in the application process. Accessibility could then be included in the licence conditions and would become just a regular objective.

In the debate in Committee, the Minister was against this on two grounds. The first was that it duplicated existing requirements in the Equality Act, which puts duties on employers and businesses to make reasonable adjustments for disabled people. I cannot agree. The amendment would make those reasonable adjustments an anticipatory duty—that is the important aspect—not a burden on disabled people after they find they are excluded. The duty would be anticipatory and it would shift the burden off the shoulders of disabled people to the local authorities. Moreover, the existing duties of licensing authorities in Section 4 of the Licensing Act refer to,

“the prevention of crime and disorder … public safety … the prevention of public nuisance; and … the protection of children from harm”.

The amendment is about the prevention of harm to disabled people. Duplication is clearly not a problem as there are scores of other statutes referring to health and safety, children and nuisance.

The amendment would not require extra activity by licensees or the regulation of activity. It is only about planning in advance for access. It would mean that businesses and premises, knowing that inspection was coming, would turn their minds to accessibility in advance of being found wanting. It would end the scenario of a disabled person turning up at, say, a restaurant and finding it inaccessible, with no remedy in hand, and the humiliation and embarrassment that follow. The local authority would be able to impose conditions on the licence. The ultimate sanction, but an exceptional one, would be a refusal to extend the licence or grant it until those adjustments were made. This is of course in a framework of what is reasonable.

The amendment is narrower and more focused than its earlier incarnation. Disabled people know that mere guidance to owners of premises does not work. The Equality and Human Rights Commission has explained that it is unable to monitor compliance. This is the chance for the Government to show their commitment to narrowing the disabled unemployment gap. It would be in line with the Prime Minister’s policy of allowing everyone to go as far as their talents will permit. The Government should not speak with forked tongue on this policy. It would add not to the burden of licensing authorities but only to their objectives. It is disabled persons who bear the burden at the moment, and they are harmed by the existing barriers to access. Licensing is about preventing harm.

The second argument from the Government against the amendment was that it was singling out businesses and premises for compliance with the Equality Act. However, businesses and premises are being asked not to do anything extra but simply to put their minds to accessibility. This is not a party political matter; it is about common sense backing up compassion. It is about self-interest as we all get older. It is about legal requirements that already exist. It is about decency. I cannot imagine that it will be opposed in any quarter. This House should be seen to stand up for people who need it. This fits entirely with the mission on most sides of the House. I beg to move.

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[Baroness Williams of Trafford]

My Lords, I thank the noble Baronesses, Lady Deech and Lady Thomas of Winchester, not only for their powerful speeches in this debate but for taking the time to speak with me over the past few weeks on the subject of this amendment. I also commend my noble friend Lord Shinkwin for the sheer quality of his speech and everyone who has spoken in this debate for their persistence in seeking to secure the rights of disabled people.

I am very sympathetic to the issues that have been raised on this matter. Licensed premises such as pubs, restaurants, theatres and cinemas are places where many of us choose to socialise and are therefore an important part of our daily lives. Too many of these venues are difficult for disabled people to access. The same is true of other, non-licensed businesses, too. The issue before us is whether we should use the regulatory framework provided for in the Licensing Act 2003 as a mechanism to enforce the provisions of a quite separate piece of legislation.

The noble Baroness, Lady Deech, and others have answered this question in the affirmative, arguing that it should not be left to disabled people denied access to licensed premises to have to fight on their own to secure their rights. The contrary argument, which I set out in Committee, is that this amendment is seeking to skew the regulatory regime in the 2003 Act and use it for a purpose for which it was never intended. The amendment potentially puts us on to a slippery slope. If we can use the 2003 Act to enforce the obligations placed on businesses by other enactments, where does this stop? Are licensing authorities then to be charged with, for example, ensuring that pubs and restaurants are paying the minimum wage or complying with other aspects of employment law?

While it could be argued that the particular challenges faced by disabled people make this amendment a special case, we should not seek to downplay the fact that there will be a cost to business. I accept that the amendment does not place any new direct obligations on licensed premises as a class of business, as they are already subject to the requirement to make reasonable adjustments. However, if we are expecting licensing authorities to act as an enforcement agency in this regard, there will unavoidably be a cost to them in discharging this new function. As the cost of the licensing system properly falls on licensees rather than the council tax payer, consequently any increase in costs for licensing authorities will need to be passed on through increased licensing fees. We must take this into account when considering the amendment.

I have heard the powerful voices expressed in the debate here today. I cannot ignore the strength of feeling in your Lordships’ House. I believe that there is scope for compromise around possible amendments to the Licensing Act, which would work with the grain of the existing licensing regime. I cannot say more at this stage, as there is further work to do to scope such a possible compromise, but nor can I give the noble Baroness, Lady Deech, any undertaking today that I will be able to bring forward a government amendment at Third Reading. I hope, however, that the noble Baroness will agree to move forward on the basis of the preliminary discussions that we have had earlier this afternoon and, if not, perhaps we should come to a decision on her amendment today.

[Baroness Deech]

My Lords, I know that the Minister is sympathetic, but I still find the arguments unpersuasive. The Licensing Act is already used to enforce other Acts, for example, about children. If there is a cost to business, or a cost that is going to be passed on, are we to say that we can never make improvements for disabled people because it might cost somebody something? That simply will not do. I believe the Minister is suggesting that any amendment that the Government may bring forward would not remove the burden from disabled people but require them to make representations, make phone calls and use the internet to fill in forms and so on—when we know very well that even if you are able, trying to deal with local authorities on this sort of thing can be a nightmare. I am simply saying that access for disabled people—and, as the noble Baroness said, for the elderly, which is all of us eventually if not already—should be mainstreamed.

All parties in this House, some more than others, claim to have as their raison d’être improving the life of the disadvantaged and the vulnerable. To refuse to do this when presented with a straightforward, effective amendment is incomprehensible to me and goes against what I believe this House stands for. The amendment would make adjustments anticipatory and remove the onus from disabled persons. I do not believe that any compromise that the Minister might offer, well-disposed though she is—I know that she spent a lot of time on this—would meet that bill. Given the mission of this House, I do not think that we should talk the talk; I think that we should walk the walk. On that note, I wish to test the opinion of the House.