4. Further memorandum from Richard McDonald
Bridge, MacDonald Bridge, Solicitors
Further to my previous email, I have overnight noted
a serious lacuna (or worse) in the arguments of the government
about article 8: a lacuna that must significantly and further
undermine any belief that the government in any way intends to
deal frankly and openly with human rights concerns.
Indeed, given the doctrine of ministerial responsibility
it may amount to a matter which should give Mr Howells cause to
consider his position.
The government asserts as if fact that a licensing
authority will ONLY be obliged to consider a premises application
if "it is satisfied that the application has first been advertised
in a manner likely to bring it to the attention of those living
in the vicinity of the premises". This is not the case. The
duties in question (to grant, or consider, or take steps etc)
are indeed subject to a precondition of a slightly similar kind,
but the effect is strikingly dissimilar. The relevant precondition
is that the authority "is satisfied that the Applicant has
complied with ANY (emphasis added) requirement imposed on him
under section [17(5)]". Section 17(5) says that Regulations
MAY (not must, and emphasis added) require advertisement of an
application. Such regulations MAY (not must, and emphasis added)
be "likely to bring the application to the attention of the
interested parties likely to be affected by it".
As a minor matter, interested parties will not be
affected by the application. They will only be affected by the
grant of a licence (conditionally or otherwise) pursuant to the
application, or possibly its refusal. That is just slipshod drafting.
The principal difference however is absolutely fundamental
to any question of whether article 8 rights are observed. The
government argues that these to be affected WILL have had notice.
That is not what the Bill says. The Bill says they MAY (and I
add "perhaps") have notice.
30 January 2003