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Mr. Moss: Before we finish—I said that the debate would be short—perhaps the Minister could remind the Committee where the Bill refers to delegation to a panel of officers. That would be helpful.
Dr. Howells: The—no, this note does not tell me. I shall come back to the hon. Gentleman on that.
Mr. Moss: Yet again, it will be too late to do anything about the matter. The issue is not vital, but it would have been helpful to have the answer when the question was posed. The amendments were probing, and I am reasonably satisfied with the explanation given by the Minister, particularly with reference to subsection (4) and those functions that officers are not
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delegated to deal with. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 ordered to stand part of the Bill.
Clause 12 ordered to stand part of the Bill.
Clause 13
The relevant licensing authority
Mr. Turner: I beg to move amendment No. 176, in
clause 13, page 8, line 4, leave out 'subsection (3)' and insert 'subsections (3) and (3A)'.
The Chairman: With this it will be convenient to discuss amendment No. 212, in
Mr. Turner: The amendments bring us back to our earlier discussion on amendment No. 99, and refer to the power of the local authority to be judge and jury of its own case.
During the last sitting but one, somewhat extravagantly, I accused the Minister of trying to rewrite the whole of local government procedure, but he accused me of trying to rewrite a good deal of local government legislation when we debated amendment No. 99. We are dealing with a tremendously important matter of natural justice. If one applies for a license in a quasi-judicial proceeding, one should not also determine whether that license should be issued. If I were arraigned for some unfortunate behaviour, such as driving with a defective rear light, I doubt that the Minister would be satisfied if I were then able to sit on the magistrates bench and say, ''You shouldn't have done it, but in the circumstances we find you not guilty.'' That would be an abuse of natural justice and a defective procedure, and it would be widely misunderstood.
Local authorities giving themselves licences, as is the case with local authorities giving themselves planning permission, will be widely misunderstood and mistrusted. I want the Minister to think of a better way to solve the problem. I have exercised my imagination in every conceivable manner. I tried amendment No. 99 and amendment No. 177, which you, Mr. Gale, found to be defective, and I appreciate why. I am now trying something different. If the Minister can come up with a route other than the one that I proposed in those amendments and in amendment No. 212, I would be very happy. I am sure that he wants to make me happy.
It is not ideal to give a power to the Secretary of State, but because on this one occasion I cannot think of anything better, amendment No. 212 would do that.
Mr. Jones: Is not it the case that if a local authority could give itself a licence, as it can under planning legislation, any objection to it could still be heard in a magistrates court? Also, if there were a case of maladministration, it could be reported to the local government ombudsman.
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Mr. Turner: I shall deal first with the hon. Gentleman's second point, because there is a question about it, to which it is important that the Minister give a straight answer. The local government ombudsman denies that he has the power to act if there is an alternative tribunal.
Mr. Jones indicated dissent.
Mr. Turner: I shall illustrate my point by reference to special educational needs. The local government ombudsman has told people in my constituency that he will not consider cases of maladministration in the provision or otherwise of special educational needs statements because there is an alternative tribunal—the special educational needs tribunal. If the Minister denies that, I shall go straight back to the local government ombudsman, tell him that he is behaving incorrectly and ask him to deal with a host of applications by my constituents, who are unhappy about the way in which the local authority has dealt with their special educational needs statements. However, I suspect that the Minister will not be confident enough to deny it.
Mr. Jones: Is not the ombudsman correct to say that he cannot sit in judgment in special educational needs cases? However, he or she can deal with maladministration in the process if it has taken place, even for special educational needs.
Mr. Turner: The problem with that—I am trying not to forget the point that the hon. Gentleman made about the magistrates court—is that the local authority may have reached a perfectly justified and correct decision through the administrative procedure, but members of the public may believe that it does not take full account of the demands of natural justice. If the procedure set out by legislation denies natural justice, all that the local government ombudsman can say is, ''The authority followed the procedure and there is no maladministration.''
Mr. Sanders: I am warming to the hon. Gentleman's argument. The problem with the ombudsman route is that the local authority is not obliged to accept his decision in any case. The hon. Gentleman makes a debating point, rather than a point that is relevant to the Bill.
Mr. Turner: The hon. Gentleman brings us to the demolition of the argument of the hon. Member for North Durham. If I had been sufficiently astute, I would have thought of that. I confess that I did not, but I shall deal with the matter shortly.
The public may view the procedure in the Bill as defective. The local government ombudsman can do nothing if the correct procedure is followed and there is no maladministration, but the decision may be defective if it denies the objectors natural justice. However many magistrates court appeals provisions there are, if the procedure is correct, there is nothing that appeals tribunals can do about it.
I have tabled the amendment because I believe that the procedure is defective and should not be in the Bill. It is not right that one should be judge and jury in one's own case. I have used that phrase a number of times.
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Mr. Jones indicated dissent.
Mr. Turner: The hon. Gentleman does not like it: he shakes his head, but he has been unable to demonstrate that in this case the licensing authority is not judge and jury. He may think that in North Durham things are done so spectacularly well that the licensing authority never has the opportunity to behave as judge and jury. He may think that his constituents do not mind the local licensing authority being judge and jury. I can tell him that my constituents mind a great deal about that.
Martin Linton (Battersea): They talk of little else.
Mr. Turner: They talked of little else in Fairlee road when the council was applying to give itself permission to hold a pop festival. My colleague, Drew Mellor, who is the councillor for that area—and of an age when one might expect him to be interested in pop festivals—was very exercised about the fact that the local authority was able to give itself permission.
Local electors do not like that, any more than they like it in respect of planning permission. It is allowed in respect of planning permission and it has been allowed since 1066 in respect of licensing provision, but that is no justification for it being perpetuated by the Bill. That is why I have tried, in my small way, to think of a better procedure.
9.45 am
Dr. Howells: Do not be modest.
Mr. Turner: If the Minister can think of a procedure that is better still, I will be happy to withdraw my amendment, but if he cannot do so and we are not careful this will end up in a whole host of complaints, appeals, ombudsman cases and so forth, and eventually someone will wave the ghastly human rights flag, which they tend to wave when they cannot think of any other flag to wave.
Mr. Jones: What about Europe?
Mr. Turner: I was going to mention that.
They will wave the human rights flag and some expensive human rights lawyer will take the matter to the House of Lords, which will say, ''Sorry, there is a failure of natural justice,'' and this legislation will be overturned because of that.
Mr. Field: I congratulate my hon. Friend on his ingenious attempt to find a way around this problem, which is inevitable in any licensing or planning regulation, as we have seen in the past in a range of local authorities.
It is a difficult problem. My concern with the amendment is simply about giving the Secretary of State the power to designate an authority. All Committee members are aware that there are a number of narrow stress problems with the Bill. In my local authority in the City of Westminster, I would be reluctant for licensing matters to be determined by, for example, the London borough of Enfield or the London borough of Barnet—by mentioning them, I am not making any narrow political point as both of them are now Conservative authorities. However, Westminster's problems in that regard could probably be dealt with only by, for example, the
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neighbouring authority of Camden. It may well be the case that there a number of local authorities where the neighbouring authority has an entirely different regime and it would be difficult for a Secretary of State suddenly to have the power passed on in this sort of way.
We must face this difficulty: it is inevitable that there will be accusations of conflict of interest. The hon. Member for North Durham rightly pointed out that where a planning authority is also the owner of land—as is the case in every local authority throughout the country—there is a prima facie conflict of interest. We do not want to go down the route of relying on the ombudsman. We must accept that the ombudsman can be used only in extremis. An ombudsman's inquiry is often a long-winded and time-consuming process that takes years to produce results.
There is something that we must consider. All Committee members—particularly those of us who were in local government before coming to this place—know that, all too often, where there are complaints, they are more about procedure than outcome. One need only consider the massive and time-consuming inquiry into terminal 5 at Heathrow. That was a tortuous procedure. It involved appeals, public inquiries and various other forms of public consultation. Even then, at the end of the process, there were still members of the public who said that they did not feel that they had had their say. The reality was that they had; they were simply unwilling to accept the outcome.
Local authorities have to be a little more robust about the issue, particularly in their roles as licensing authorities and in a planning context. I shall give a concrete example. When I was on a local authority, planning was my main area of interest. The Kensington and Chelsea Conservative Association decided that it wanted planning consent for its property and the planning committee went through a tortuous process. It looked as though every last Conservative member of the planning committee would, as a member of the local Conservative association, be disqualified from playing any part.
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