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Lord Brooke of Sutton Mandeville: As the Minister was making his response to this grouping, I turned to Clause 177 of the Bill to look at the nature of the Secretary of State's guidance, which will be,


Is the Minister saying that they would not be subject to judicial review if they went ahead and paid no attention to Clause 177 even though the words "have regard to" had been removed from the Bill by Amendment No. 84? If he is not saying that, is he not

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putting the local authority in the position that it has to keep altering its licensing policy in the light of any future guidance?

Lord McIntosh of Haringey: On its own, Amendment No. 84 removes the obligation on the licensing authority to "have regard to" any guidance issued by the Secretary of State. In other words, by agreeing to the amendment, one is doing as good as voting against Clause 177 stand part. There is no point in having guidance if no one has an obligation to have regard to it. Is that the question I was asked?

Lord Brooke of Sutton Mandeville: That is the question I was asking. However, on the Minister's interpretation, which I acknowledge from the text, would he then oblige the local authority to keep changing its licensing policy in the light of any new guidance? I am saying that the local authority could have regard to Clause 177 when it set out its licensing policy in the first instance.

Lord McIntosh of Haringey: The local authority does not have to change it every single time; it just has to show that it has had regard to it. The guidance may change and the licensing authority may say, "Yes, we thought about that, but it does not apply to us and we are not going to make any change to our statement under Clause 5".

Lord Hodgson of Astley Abbotts: The issue of large capacity venues has caused some concern. Could a licensing authority say, "We have had regard to the guidance, but we don't want 1,500 as the limit in our area; we want 500". Could it do that, or must it be 1,500 or above? It is the smaller capacity issues that will be very difficult to enforce.

Lord McIntosh of Haringey: As long as they have thought about it, and as long as they have read the guidance and paid attention to it, yes, of course, they could change the 1,500—they could change it to 500, or they could change it to 5,000 if they wanted to. My noble friend Lady Blackstone will speak more about the guidance in speaking to the next group, so I shall not go into it in detail. However, the framework which Members of the Committee have seen is not the guidance itself; the framework was provided to inform debate on Clause 177. The guidance will take account of the debates in this House as well as all the other representations made on it. The obligation on the local authority is to "have regard to" the guidance. If it reads the guidance very carefully, thinks about it and says, "1,500 is not the appropriate number for us", it is within its powers to do so.

It is a hierarchy of obligations. The licensing objectives, in Clause 4, are common for all local authorities and are obligatory on all local authorities. The statement of licensing policy, in Clause 5, is designed to take account of local circumstances and is produced by licensing authorities themselves. The guidance in Clause 177 is designed to provide help for

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local authorities in producing consistency between licensing authorities and to give guidance on what should be in licensing policies. Those are the three elements. All of these amendments would cause damage to the relationship between those elements.

Lord Renton of Mount Harry: The noble Lord is understandably trying to play down the importance of guidance. Nevertheless, what real reason does he have to do that? Earlier, I quoted the example of national parks and areas of outstanding natural beauty; PPGs—planning policy guidance—are issued to local authorities about their planning decisions in that regard. If they do not follow that guidance, it is very likely that an inspector and an inquiry would follow, and that very serious questions would be asked about why the PPG issued by the Environment Secretary had not been followed.

Does not that go to the heart of the problem? What is guidance? It is just a tilt in the right direction and if the licensing authority does not want to follow it, so be it. But certainly as regards planning guidance issued by the Secretary of State for the Environment, that is not the case. Local planning committees are certainly expected to follow that planning guidance.

9.45 p.m.

Lord McIntosh of Haringey: I am not trying to play down the matter. I am simply saying that, having had regard to the guidance—in other words, having considered it properly—the licensing authority can reach a different conclusion which is appropriate to its circumstances. That recognises the differences between, for example, a town centre and a rural area.

I do not deny or confirm anything that the noble Lord, Lord Renton of Mount Harry, says about planning guidance. I do not think that we should draw any conclusions from guidance in other legislation. I refer to what will happen in the circumstances we are discussing. There is a balance here of common objectives agreed by everyone and understood by licence applicants, local residents, the police and local authorities together with a degree of local autonomy providing for special circumstances whether in Sutton town centre or Muddlecombe-under-Slosh. That is provided for in Clause 5. There is also the guiding hand of the Secretary of State in the sense that I have described it. That seems to me a rational way of dealing with devolution and special circumstances but with a necessary core of consistency.

Lord Avebury: I hope that the Minister can explain a matter to me. He referred to paragraph 41 of the framework guidance which refers to the situation in premises which have a capacity exceeding 1,500. In designing their policies how can local authorities ever specify what is to be done in these larger premises if no one can ever acquire the experience that is necessary to manage them? If they stick rigidly to the recommendation in paragraph 41, the licence would have to lay down that the individual responsible for day-to-day management must have had a certain level of experience of controlling similar venues. So how

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does anyone acquire the experience that enables him to manage such large premises when he cannot be appointed to them even provisionally within the terms of the advice that the Secretary of State will lay down?

Lord McIntosh of Haringey: I shall not embark on a detailed defence of the framework guidance. As I said, the matter of how guidance and draft guidance will be made available will be explained by the noble Baroness, Lady Blackstone, when she discusses the next group of amendments. Of course, questions remain with regard to paragraph 41 of the guidance. There are parts that legislation cannot reach. However, guidance can be changed to suit changing circumstances. If we sought to legislate in either primary or secondary legislation to cover all the eventualities that might arise in negotiations between the licensing authority and applicants, we would be here until midnight for many months. We shall be here until close to that time as it is. We are in danger of going much too far.

Baroness Buscombe: I thank the Minister for his response. We are in danger of being here rather a long time as we are desperately seeking clarity. On the one hand, I am extremely grateful to the Minister because my question has been answered. My question was: what will a licensing authority do when it has to consider its own licensing statement and national guidance issued by the Secretary of State and when there is conflict? The Minister has made it clear that the local authority will retain the ultimate authority to depart from the guidance. In turn, I question why that is not clearly stated in the Bill. As I said in my opening remarks, it is unclear who takes precedence.

Lord McIntosh of Haringey: That is exactly what "have regard to" means; that is what it means in legislation, and has done for many years. I can have a learned letter written to the noble Baroness, Lady Buscombe, to give her precedents. Her interpretation is exactly right, and that is why we use the words "have regard to" rather than "take account of".

Baroness Buscombe: I thank the Minister, but he may remember that I referred to something that his noble friend Lord Filkin said. The noble Lord, Lord Filkin, suggested in relation to the Nationality, Immigration and Asylum Bill that the wording "having regard to" would,


    "open up an increased probability of frequent judicial review".—[Official Report, 6/11/02; col. 782.]

He also said that it would cause delay. I believe that we are right to table these probing amendments. When developing our thoughts and arguments in relation to the amendments, we were of the view that "have regard to" carries more instruction than "take into account". The Minister sees it the other way, and I am grateful for his clarity.

The provision will, however, create a sense of inconsistency at local level. As I know from my own experience as a district councillor on a planning committee, like it or not the committee was very much

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subject to the instructions of the planning guidance issued by the Secretary of State. My noble friend Lord Renton of Mount Harry made a similar point. Officials and elected members of local government will be given much more of a free hand with this Bill, but they will have to stick to what is customary at local level in following national guidance.

Having said that, I am grateful to the Minister for his response. However, I ask him to think carefully about the possibility of introducing an amendment on Report to make it clear in the Bill that the ultimate authority will remain with the local authority to depart from the guidance. In that way, people will know exactly where they are and will not have to go fishing in Hansard for the answers. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 82 to 84 not moved.]


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