Police Reform and Social Responsibility Bill

Lord Brooke of Sutton Mandeville Excerpts

Thursday 9th June 2011 Lords Chamber

I make one other point in this respect. We have learnt over the years something that we did not know in the 1970s. Some people are profoundly predisposed to becoming alcoholics and find it incredibly difficult to give up, precisely because alcohol is such a hard drug. In many ways it is more difficult to give up a drug such as alcohol, if you are totally dependent on it, than it is to give up heroin. There are parallels in that area. There is also a parallel with giving up smoking. Some people can give up smoking fairly easily. Others, because of their brain’s predisposition to accept the drug nicotine, find it much harder. Precisely the same applies to alcohol. Therefore, one of the things that could happen if we did this well over a period would be the building up of expertise in recognising those people early. If you recognise a person who has a predisposition to becoming addicted to alcohol fairly early in their career, your chances of getting them off it are much better than they would be otherwise. It is very difficult to get a person who has become a dependent alcoholic off alcohol in anything like a reasonable time, and very often you will fail.

[Lord Brooke of Sutton Mandeville]

My Lords, I apologise to the Minister, the noble Baroness, Lady Finlay of Llandaff, and your Lordships’ House for being late. Having waited all day for licensing, it is very embarrassing to be late. I shall therefore be extremely brief.

I speak primarily to the proposed new clauses in Amendments 242 and 243. I was approached by the mayor’s office. I am not entirely clear why, but I am a veteran of the passage of the Licensing Act 2003 through your Lordships’ House, in which I participated heavily because for 24 years I had represented the swathe of the West End which ran from W2 in Bayswater to the far end of the EC postal district, an area in which a great deal of alcohol is consumed. I listened closely to the mayor’s representatives. I agreed my support. It would be wrong, given that I did not hear the start of the debate—although I came in on the speech of my noble namesake—for me to speak at length. However, on the basis of what the mayor’s representatives explained to me in their presentation, I am strongly in favour of an experiment along the lines of these two proposed new clauses.

I realise, rather bleakly, that this idea runs up against the risk of those initials, NIH: “Not invented here”. However, I hope that the Government will be sufficiently open-minded to think that it is worth an experiment. I hope very much that that takes place.

[Lord Shipley]

My Lords, I will say a word about Amendment 237A. It is one of the most important amendments that we have on the subject of licensing because of the principle it lays down.

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[Lord Shipley]

My Lords—

[Lord Brooke of Sutton Mandeville]

My Lords—

[Lord Shipley]

My Lords, I have two comments to make on Amendment 237B and the related Amendments 238 and 239, in the name of my noble friend Lord Palmer of Childs Hill. There would be benefit in getting some clarification of what some definitions, such as “sufficiently close” and “adjoining area”, actually mean. The Bill would be improved if we got that. First, on Amendment 237B, there is a problem in removing the power of an interested party to make representations. As an example, if the amendment was approved, it would mean that a residents’ association could not make an objection in its own right. It would have to be on behalf a person with a direct interest who lives in the area or a person who has a direct business interest in that area. Amendment 237B is too tight in how it restricts those who can comment.

The second problem relates to the issue that my noble friend Lord Palmer is trying to address in Amendments 238 and 239. At present, those who wish to object can do so only if they live in the licensing area. But in some urban areas, of course, a main road can divide a licensing area from the area that would be impacted upon. That problem would be addressed by Amendment 237B because the definition of “sufficiently close” could mean across the road. A good example of this is Edgware Road, where one side comes under the London Borough of Brent and the other side comes under the London Borough of Barnet. If the application is in one borough, those who can object must be residents of that licensing area as things stand. Through his amendments, my noble friend Lord Palmer is saying that it is important that those who are living sufficiently close to the premises can object even though they may be outside the licensing area of the application.

[Lord Brooke of Sutton Mandeville]

My Lords, I am happy that I gave way to my noble friend Lord Shipley because what I shall say follows precisely what he was saying. My noble friend Lord Clement-Jones will recall the debates which we had on the Licensing Bill in 2003, particularly about inner London and the alliance I formed on that Bill with our mutual noble friend Lord Avebury. He is sorry that he is not here today because of a conflicting engagement.

There is a balance, in fact, to the amendments which have been put down by my noble friends Lord Clement-Jones and Lord Astor. My noble friend Lord Shipley referred to residents’ associations, but there is a larger problem even than that. It is a very time-consuming business to be involved in following licensing applications; it is difficult to find people who have the time to carry out that sort of activity and make oral representations as well. Therefore, the greater flexibility in terms of the people who can come and do that is important, and it goes back to the residents who live there. I am pleased by the amendments which the Government have made and I hope that the Minister will resist the precise amendments which my noble friends have tabled.

[Lord Stevenson of Balmacara]

This is an interesting debate which seems to be narrowing down to how one defines what the objectives are. Speakers in the debate seem to be relatively united on one point, which is that we want to see a connection between an objection to a licence and a reason for that objection. If that reason is to be geographic, it ought to be linked in some way to the physical presence of the person who is making the objection and the premise and should not be subject to the vicissitudes of random boundaries. That is the sense in which the amendment has been tabled. Whether the wording is right or not perhaps needs further investigation. However, we certainly do not want people who live in Scotland, say, objecting to licences applied for in the Edgware Road, because that clearly would be ridiculous. As the Bill is drafted, however, that might be possible. I will be grateful if the Minister will make it clear what the vicinity test really means.

There are other reasons for wanting to object to a licence. The reference to live music and the like puts that into focus. We use our premises in many ways, not just for social recreation but also to enjoy other things. Objections must be appropriate and relevant to the process of licensing that encompasses them. Simple dislike of what goes on in a place should not be sufficient to allow a representation to be made. We would be concerned if the Bill in any way opened that door.

The difficulties faced by small premises such as bars and places where live music is performed are very great; the economic circumstances they face are very severe and we should not do anything to diminish the chance they have of making good and proper use of their premises and making sure that people enjoy what they offer.

While we are speaking about objections, I have received representations—as many other noble Lords may have—saying that many licensing authorities approach licensing in a way that encourages objections, rather than by receiving general representations on the licensed premises concerned. In other words, if you go to a website it tells you how to object but not how to represent support for what is going on in those premises. I wonder if the Minister, in responding, could touch on that point as well.

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Debate on whether Clause 106 should stand part of the Bill.

[Lord Brooke of Sutton Mandeville]

My Lords, I hope what I am about to say is not an abuse of the clause stand part procedure. The regulations under paragraph 17(5)(c) of the Licensing Act 2003, which sets out the 28-day period for making recommendations, should be amended so that the 28-day period starts from the date when the application appears on the licensing register rather than when it is received by the local authority. At present, applications can take many days to validate and may appear on a licensing register only shortly before the expiry of the 28 days. As electronic registers are increasingly becoming the preferred method by which interested parties can monitor licensing applications, this would make the system simpler and clearer, as my noble friend Lord De Mauley was suggesting a moment ago.

I realise that it may be asking too much to remove the requirement in the regulations for representations to be in paper form, as well as by a relevant electronic facility, but I hope that one could allow electronic representations to be valid in subsequent correspondence.

[Lord De Mauley]

My Lords, I am most grateful to my noble friend for raising a matter which is very close to my heart. I will reflect upon what he has said and revert to him, perhaps in writing.

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[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.

[Baroness Hamwee]

My Lords, my noble friend Lord Shipley and I have not necessarily taken the same view on this part of the Bill as my noble friend Lord Clement-Jones. If I may put it crudely, we start from the localist rather than the business position, but I deliberately said on Second Reading that I thought that local authorities have responsibilities to businesses in the area as well as to residents. However, we are both sympathetic to these amendments—except, perhaps, for one of them.

The issue has been cast as a subjective versus objective test. Can the Minister say whether, on either or both “appropriate” or “necessary”, the term “reasonably” would be implied? That might help us to see the position as a little less polarised. My noble friend Lord Shipley, with his local government experience, reminds me that it could be difficult for the licensing authority to administer what is appropriate. That could be much more difficult to assess.

I depart from my noble friend Lord Clement-Jones on one amendment: Amendment 240P. I can see an argument for using the appropriateness test for making the new early morning alcohol restriction orders. We are talking about something a little different there, but I look forward to hearing what the Minister has to say.