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Lord Cope of Berkeley: My Lords, the Minister came near to accepting that the regulations could cover all the difficulties in relation to this matter, but although he has some sympathy with it, I understand that he is prepared to put that on one side in order to object to the amendment. In those circumstances I shall not press it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Offence of using unlicensed security operative]:

Lord Bassam of Brighton moved Amendment No. 8:

The noble Lord said: My Lords, this amendment is purely technical. It substitutes the word "conduct" for the word "activities" in Clause 5(3). That clause refers back to Clause 4 which, in turn, makes provisions for exemptions from the need for a licence when circumstances as defined make a licence unnecessary. It engages in certain types of "conduct" that is made subject to the licensing requirement by Clause 3. The exemptions in Clause 4, therefore, also refer to "conduct", and for consistency Clause 5 should also refer to "conduct" rather than to "activities".

As far as we can see, there is no substantive effect other than to make the wording of the Bill more consistent, and noble Lords opposite are keen to ensure that we satisfy consistency. For those reasons, I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 9:

    After Clause 5, insert the following new clause--


(" .--(1) A person who is an occupier of any premises is guilty of an offence if--
(a) any individual carries out, in relation to vehicles on those premises, any designated activities consisting in activities to which paragraph 3 of Schedule 2 (immobilisation of vehicles) applies;
(b) the carrying out of those activities involves that individual's engaging in licensable conduct in respect of which he is not the holder of a licence; and
(c) those activities are carried out with the permission of that occupier or for the purposes of, or in connection with, any contract for the supply of services to him.
(2) In proceedings against any person for an offence under this section it shall be a defence for that person to show either--
(a) that he did not know, and had no reasonable grounds for suspecting, at the time when the activities were carried out, that the individual in question was not the holder of a licence in respect of those activities; or
(b) that he took all reasonable steps, in relation to the carrying out of those activities, for securing that that individual would not engage in any licensable conduct in respect of which he was not the holder of a licence.

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(3) A person shall not be guilty of an offence under this section in respect of the carrying out of activities which are comprised in any conduct of an individual in which he is entitled to engage by virtue of section 4.
(4) A person guilty of an offence under this section shall be liable--
(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.").

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 10:

    After Clause 5, insert the following new clause--


(" .--(1) An individual, partnership or company which employs security operatives to which paragraph 8 of Schedule 2 to this Act applies (door supervisors, etc for public houses and clubs and comparable venues) shall be liable, in contract and in tort, for the acts and omissions of its security operatives where they inflict personal injury to any person--
(a) at the suit of that person, where that person is or desires to be a guest or customer of the venue,
(b) where that personal injury is inflicted within or in the vicinity of the venue, and
(c) at a time when the security operative is at work.
(2) It shall be the duty of any such individual, partnership or company to maintain, for public inspection, upon reasonable notice and upon the payment of such fee as the Secretary of State may from time to time prescribe, a list of the individuals to whom paragraph 8 of Schedule 2 to this Act applies, and the dates upon which they worked, and their hours of work.
(3) For the purposes of this section, an individual, partnership or company employs a security operative if he has security operatives on his premises, notwithstanding the fact that those security operatives may be employed or remunerated by another individual, partnership or company.").

The noble Lord said: My Lords, Amendment No. 10 refers to a matter that was discussed in Committee. I attempted to suggest that those who run clubs and have bouncers--this amendment refers to that part of the Bill--should be able to be held responsible for the bouncers' conduct, should they damage any of the customers--although generally those who fail to become customers are affected--or other members of the public in the course of their activities.

The Minister was not prepared to accept the proposal in Committee because he pointed out that the amendment as previously drafted would have made the employer liable for all actions, including those of a bouncer who when driving home had a crash or when he was operating quite outside the control of the owner or owners of the club. We have therefore redrafted the new clause to include a list of such factors. The provision would then apply only to an incident in which the bouncer was damaging someone in the course of his work. It would not apply when he was on a frolic of his own.

The problem is that when someone injured in such a way attempts to sue, it is found that the bouncer has no money; that it is difficult to discover his name and address or to pursue the matter; and that owners of

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clubs are not always willing to stand behind the actions of their employees. We are attempting to ensure that they are willing to do so. I beg to move.

Viscount Goschen: My Lords, I support Amendment No. 10. It contains an element of my Amendment No. 18A in that it seeks to address what lies behind the actions of individuals. I have a good deal of sympathy with my noble friend who believes that individual bouncers might commit offences. They might rough people up or throw them down the stairs and could come into violent contact with customers. The owner of the club or the manager of the company could stand aside and say, "It wasn't me; it was these people we hire under contract with a security firm and any damage they do is nothing to do with us". The customer could be put in a difficult situation if he felt he had a case to make.

The amendment gives managers of night clubs and security companies an incentive to ensure that their employees behave themselves according to the law and the regulations relating to their conduct. They cannot be told privately, "Get tough with such and such a group. Make sure they are thrown downstairs vigorously", or whatever the unlawful instruction might be. If such incidents occur and if customers come into contact with bouncers who are not behaving properly, it should not be the case that only that one individual can be sued. Those who are behind him should be sued, too, and therefore I support the amendment.

Lord Thomas of Gresford: My Lords, the new clause is a considerable improvement on the previous one. It confines the scope to a limited situation. The owner of the club is liable only for the acts and omissions of his security operatives in personal injury cases: where the person is a customer; where the injury is inflicted within the vicinity of the venue; and at a time when the security operative is at work. Those are well defined and confined circumstances.

As I said in Committee, the issue is one of insurance. Overall, knowing the problems which exist when bouncers inflict injuries on customers and then disappear, there is considerable merit in the suggestion put forward.

3.45 p.m.

Lord Bassam of Brighton: My Lords, the amendment is interesting and has been improved since we discussed the matter in Committee. It places additional requirements on the employers of door supervisors and those who may use door supervisors without themselves employing them. It also places a vicarious liability on those employers or other users for the actions of the door supervisors.

We had a considerable debate on the matter in Committee and I said that I would take time to reflect further. We have examined the issue again, particularly in the light of the need to balance the interests of the public at large against the need not to over-regulate businesses. Having done so, I remain of the view which I set out in the Committee; that in the

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full context of the provisions of the Bill, the amendment places a disproportionate burden on businesses.

It is already the case that a member of the public who has a complaint against a door supervisor should be able to ascertain the relevant information from the employer. He could also ask the police to help in his inquiries since a personal injury inflicted by a door supervisor is likely to be a criminal matter.

However, one of the main benefits of the regulatory framework established by the Bill will be a substantial improvement in the quality of staff undertaking door supervisor services. Over time, the security industry authority will ratchet up standards of training and conduct as part of its evolving licence criteria. But perhaps the biggest impact will come early on, when the authority judges licence applications on the basis of an enhanced criminal record check, which will provide it with information about spent and unspent convictions, minor convictions and local police intelligence. The incidence of violent door supervisors operating legally at pubs and clubs should be very substantially reduced.

Against that assumption, the Government believe that the additional duties placed on employers by the amendment to keep publicly available records of door supervisors' names and addresses, and the dates and hours of work, is disproportionate.

Although I have reservations about the regulatory burden of the proposal, there would be nothing to stop the security industry authority from making it a condition of the approved contractor's scheme under Clause 14, into which we expect market forces to draw the majority of contractors. Under such an arrangement, the pub or club could tell a member of the public with a complain the name of the firm supplying its door security services and that firm would be able to say who had been despatched to work at the pub or club at the relevant time.

The second aspect of the amendment relates to vicarious liability which, as I said in Committee, raises further questions. Vicarious liability is firmly established at common law as a principle which makes employers liable for the acts and omissions of employees who are acting "in the course of their employment" rather than, as has been said by the courts, "going off on a frolic of their own".

The amendment would appear to make a door supervisor's employer liable in contract and in tort for relevant actions and omissions of his employees. If a door supervisor decided to assault someone while carrying out his duties, the employer would already be liable to pay compensation for the actions. I am not convinced that the amendment adds significantly to the position already established under common law and it creates uncertainty by introducing new rules of vicarious liability to operate alongside the existing common law rules.

Subsection (3) of the new clause provides that a person or a body is to be regarded as the employer of a security operative just by having one on the premises,

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even if he is supplied under a contract of services. So a landlord may go to the trouble of employing a reputable company and yet still be liable for misdeeds on the part of the door supervisor. That extension of the vicarious liability principle goes far beyond the needs of common law. In our view, it would impose an unfair and wholly unjust system on those who retain door supervisory staff.

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