Criminal Justice and Police Bill

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Mr. Clarke: I do not accept that. Magistrates courts work in a way that is well established. The Human Rights Act provides important defences and I believe that the process will be absolutely clear. The requirements that anyone might have for the rights of audience are there in an effective way.

Sir Nicholas Lyell: We are focusing on amendments that suggest that the licensees should be given a certain amount of notice when the matter is taken to the court. Could the Minister slot that into the overall framework of how he sees this working? I think that he would agree that it is more desirable that the police officer should give notice of his intention to impose a closure order, which I think that he can, for, let us say, the following day and should give an opportunity for the matter to be heard before a magistrate later that day. Is that the correct framework, or is it as cumbersome as it seems and must he give the closure order that day and then rush round to the magistrates when the matter has already been closed? I may have missed something as I had to be absent, but could the Minister explain?

Mr. Clarke: The right hon. and learned Gentleman is right. We debated this matter at some length while he was away during this afternoon's sitting. I understand that he was at the Standards and Privileges Committee during the morning sitting. I simply repeat that my expectation is that, in accordance with widespread practice, the police will give warnings and magistrates will operate as rapidly as possible; that is the explanation for the phrasing. I believe that the process will provide all the security that any licensee would want.

I shall repeat an argument that I made a moment ago for the sake of emphasis. We all try to follow Winston Churchill's example and we repeat things to emphasise them, as the hon. Member for North-East Hertfordshire said this morning. We believe that there is a virtue in flexibility to get the hearings in front of magistrates as rapidly as possible. It is in the interests of both the police and the licensee.

Amendment No. 89 would take away from the relevant justices the ability, when considering a closure order made by a senior police officer, to do anything other than revoke or extend the order. The City of Westminster Act 1996 is a model for the clauses on the closure of unlicensed premises. The Bill as published gives the justices an additional option to make any other order as they think fit in relation to the licensed premises that have been closed. The amendment would remove that additional option.

We think that it is sensible to ensure as much flexibility as possible. Cases may arise in which premises have been quite correctly closed, but where it would be safe and acceptable for the justices to allow them to reopen provided that some precaution was taken to avoid an early repetition of the problem that prompted the closure. Let us suppose that there has been a large fight between two groups of sports fans in a pub displaying a slogan that one group finds provocative. The justices might take the view that the pub should remove the slogan, and be able to reopen if it did so. That was the kind of example given by the right hon. and learned Member for North-East Bedfordshire a moment ago. If the justices could only revoke or extend the closure order they might feel obliged to keep the pub closed, whereas a relatively simple act would ensure that the pub could open.

Another example of a situation where an order might be made under subsection (3)(c) might be where the justices wanted to maintain the closure order but not until the next licensing sessions and only until after the next weekend. Again, flexibility is the order of the day. Those examples show why the flexibility that the amendment would remove is necessary to avoid doing unnecessary damage to business.

Mr. Heald: I am not aware of any representations that this power would be useful. Has anyone suggested to the Minister that this would be useful? Has he consulted the stipendiary magistrates about this?

Mr. Clarke: I do not have to hand the specific representations on that point, but the general point that comes from magistrates and the discussions that we have had on this issue is the need to operate as flexibly as possible so that everyone can work to get normal business resumed as rapidly as possible. There is always a danger in flexibility. Powers might seem overweening in certain circumstances and that is what the hon. Gentleman is understandably trying to probe in his amendment.

I appreciate that giving justices the power to make whatever order they think fit may appear wide, but the range of circumstances that could lead to the making of a closure order is itself wide and it would not be sensible to hedge the justices' powers at the review stage. In fact, the power is not as open-ended as it appears at first sight. In context, it should be understood as a qualification of the power to order an extension to a closure order, not as an addition to that power.

The options are straightforward. Either we say that justices have the power to revoke the order and extension of it, or to order the relevant licensed premises to remain closed until the licensing justices deal with relevant matters; or we say that there is room for flexibility. We could try to circumscribe flexibility further by providing a tighter wording than

    ``make any other order as they think fit'',

but it is difficult to predict what circumstances will apply. I see no evidence that justices—I emphasise that we are talking about justices, not the police—would abuse this power, which could help to resolve difficult situations in the interests of the licensed industry and the safety of the community as a whole.

Mr. Heald: Is the Minister saying that paragraph (c) means that the magistrates can make a conditional revocation of the order, and that premises must remain closed under paragraph (b) unless certain actions are complied with? Is that the case?

Mr. Clarke: Those are good examples of the way in which matters may operate. They exemplify the sort of flexibility that we want to encourage.

Mr. Heald: The Minister says that they are good examples, but might not other circumstances be relevant? He has confirmed the point made by my right hon. and learned Friend the Member for North-East Bedfordshire that paragraph (c) must be read as sui generis in relation to paragraphs (b) and (c). We have heard that conditions of revocation could apply and that paragraph (b) provides an ``unless'' provision: is that it, or might there be other examples out there?

Mr. Clarke: I have given several examples. The hon. Gentleman could have tabled an amendment to specify different types of qualification, but his amendment would effectively confine matters to paragraphs (a) and (b), which might unduly restrict the flexibility that justices could use in the interests of business and the community. I could understand it if, instead of paragraph (c), the hon. Gentleman wanted paragraphs (c), (d), (e), (f) and (g) to provide justices with a more specific range of options, albeit less flexible than the current position. If the hon. Gentleman is saying that justices would abuse this wide power and damage the industry, the licensee and the business, I simply do not accept that.

On that basis, I hope that the hon. Member for North-East Hertfordshire will withdraw the amendment.

Sir Nicholas Lyell: Before my hon. Friend responds to the request to withdraw, I want to make two quick points. First, on proper notice and the right to be heard, I have anxieties about the notion that the European convention on human rights will prescribe such and such, so it need not be written into legislation. My understanding is that our legislation should comply with it, not that our obligations under the convention should substitute for correctly drawn legislation. Will the Minister deal with that point?

Secondly, I am worried about the flexibility in paragraph (c). It is tempting to say that flexibility is always a good idea, but sometimes flexibility can be astonishingly wide. I was interested to hear about the City of Westminster Act 1996, which was passed for the benefit of one London borough out of the whole of England and Wales and possibly the whole of the United Kingdom. That is a pretty small tail to wag the national dog. It may be that that Bill was not scrutinised as closely as it should have been.

Mr. Clarke: Was that in any way the result of the conduct of the Government of the day?

Sir Nicholas Lyell: It might well have been. I was a member of that Government and I was also responsible for the quality of legislation in theory—wonderful theory. I may have failed to notice that clause slipping into a Bill that in theory I should have scrutinised. If I am prepared to say mea culpa, the Minister should be all the more ready to accept it as a good reason for not pressing ahead with something about which I now have considerable doubts. I am inclined to suggest to my hon. Friend that we should vote against it unless we get a really sensible reason for such a broad brush extension.

Mr. Heald: Starting with the procedural matters, in a way under our present regime it is for the Minister to say what his intention is; I hate to mention Pepper v. Hart, but I suppose I should. The courts can always look to see what his intention was. We are then in that happy position of having a more satisfactory law. I share my right hon. and learned Friend's concern that it is never as good to have law that has holes in it and a Minister's assurances about it as to have the right law. [Interruption.] I notice the hon. Member for Birmingham, Hall Green (Mr. McCabe) saying that this is slightly repetitive, but it is a point that I shall continue to make, as there is bad drafting.

The Minister has the ability to deal with the matter by regulation under proposed new section 179F(5), but why is he not prepared to write it into the Bill? Does he feel that these procedural matters should be dealt with in secondary legislation? Although these protections are contained in the European convention on human rights, the obligation is for them to be expressed in our law, which may happen only when future regulations are made. Could the Minister consider between now and Report stage whether he could write a little more assurance into the Bill, or alternatively, produce some draft regulations that we could consider? Those regulations might satisfy us on the procedural aspects. One thing is certain: if there is not proper notice and a proper right to be heard, all the prosecutors will end up having considerable time in court at the public expense. We do not want that. We want to get it right.

6.45 pm

I share the concerns of my right hon. and learned Friend the Member for North-East Bedfordshire about amendment No. 89 and the Minister's response to it. It is not a procedural matter. It is more important, and concerns the nature of the order that the justices can make. All we needed was for the Minister to have been prepared to nail his colours to the mast and say, ``Yes, what I mean here is that a revocation order can have conditions attached to it and an order for the premises to remain closed can be an unless order.'' That is all we seek with our proposal to delete paragraph (c). However, the Minister kept on using the word ``examples''. He was not specific. That is what worries me. I want precision, not the handing out of wide powers that no one is nailed down to.

Unless the Minister is prepared to help by giving a cast-iron assurance that paragraph (c) means what I have suggested it means, we will have to press amendment No. 89 to a vote. However, I would be prepared to give further consideration to amendments Nos. 87 and 88, and for that reason I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 89, in page 11, leave out lines 18 and 19.—[Mr. Heald.]

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 11.

Division No. 16]

Hawkins, Mr. Nick
Heald, Mr. Oliver
Hughes, Mr. Simon
Lyell, Sir Nicholas

Bailey, Mr. Adrian
Clark, Mr. Paul
Clarke, Mr. Charles
Grogan, Mr. John
Hamilton, Mr. Fabian
Humble, Mrs. Joan
Ladyman, Dr. Stephen
Lock, Mr. David
McCabe, Mr. Stephen
McDonagh, Siobhain
Sutcliffe, Mr. Gerry

Question accordingly negatived.

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