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Lord Redesdale: My Lords, this is the second time we have gone over this matter. The Minister has put forward the Government's view that this should be dealt with through contractual law. We believe that on the face of the Bill there is a gap which, if filled, would help to further the licensing objectives. I believe that the difference of opinion on that will not be reconciled through debate. Therefore, I beg leave to test the opinion of the House.
11.47 a.m.
On Question, Whether the said amendment (No. 40) shall be agreed to?
Their Lordships divided: Contents, 99; Not-Contents, 92.
Aberdare, L.
Addington, L. [Teller]
Alderdice, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor of Hever, L.
Avebury, L.
Beaumont of Whitley, L.
Blatch, B.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Butterworth, L.
Byford, B.
Caithness, E.
Cobbold, L.
Cope of Berkeley, L. [Teller]
Craig of Radley, L.
Dahrendorf, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Freeman, L.
Geddes, L.
Geraint, L.
Glenarthur, L.
Goodhart, L.
Greaves, L.
Greenway, L.
Harris of Richmond, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Holme of Cheltenham, L.
Hooson, L.
Howe of Aberavon, L.
Howell of Guildford, L.
Hylton, L.
Jenkin of Roding, L.
King of Bridgwater, L.
Knight of Collingtree, B.
Lester of Herne Hill, L.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Molyneaux of Killead, L.
Montrose, D.
Murton of Lindisfarne, L.
Northesk, E.
Norton of Louth, L.
Palmer, L.
Park of Monmouth, B.
Peel, E.
Perry of Walton, L.
Rawlings, B.
Redesdale, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selborne, E.
Sharp of Guildford, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Strange, B.
Swinfen, L.
Taverne, L.
Tebbit, L.
Tenby, V.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trumpington, B.
Vivian, L.
Wade of Chorlton, L.
Wakeham, L.
Walmsley, B.
Wilcox, B.
Williams of Crosby, B.
Acton, L.
Ahmed, L.
Alton of Liverpool, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blease, L.
Blood, B.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dixon, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fyfe of Fairfield, L.
Gale, B.
Gladwin of Clee, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Grocott, L. [Teller]
Hardy of Wath, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Marsh, L.
Massey of Darwen, B.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Parry, L.
Paul, L.
Pendry, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Sainsbury of Turville, L.
Sawyer, L.
Sewel, L.
Sheldon, L.
Simon, V.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Wedderburn of Charlton, L.
Whitaker, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
11.56 a.m.
Clause 9 [Proceedings of licensing committee]:
Clause 13 [Authorised persons, interested parties and responsible authorities]:
Lord Brooke of Sutton Mandeville moved Amendment No. 42:
- Page 8, line 10, leave out "statutory functions" and insert "lawful powers"
The noble Lord said: My Lords, Article 8 of the European Convention on Human Rights places duties on public authorities to take measures to protect individuals from nuisance. Those obligations are currently binding on licensing authorities through statute and through duties of care in common law. Both legs of the law are subject to interpretation that gives effect to convention rights under Article 8. Statute is subject to interpretation in Section 3(1) of the Human Rights Act 1998 and the common law is subject to interpretation by the courts, which are public authorities under Section 6(1) of the Human Rights Act 1998.
However, the wording used in the Bill removes from its scope those common law duties of care, which are important tools through which the convention is given effect. It therefore excludes important aspects of the positive obligation on local authorities under Article 8 of the convention. The amendment would bring those duties of care back within the ambit of the Bill. The amendment, taken together with the amended licensing objectives, would ensure that local authorities had powers as well as duties to promote human rights, as set out in the convention. I am speaking only to Amendment No. 42. The others in the group are consequential. I beg to move.
Baroness Blackstone: My Lords, this group of amendments would substitute "lawful powers" for "statutory functions" in the definition that describes an environmental health officer in the subsections dealing with authorised persons and responsible authorities in Clauses 13 and 68. The amendments would supplement that change by defining legal powers as,
- "any powers, duties and obligations conferred by or under any enactment or statute, or by a decision of the Court".
I do not understand what practical addition to the Bill the amendments would make. As I told the House previously, the Bill adopts the statutory definitions of individuals doing work related to the pollution of the environment or harm to human health—in other words, environmental health officers. Departing from accepted statutory definitions used in other enactments could risk confusion. To be clear, the Bill allows environmental health officers, who often have responsibilities and expertise relating to noise pollution and health and safety, to be consulted and to make representations when an application for a premises licence is made. It also brings them within the definition of an authorised person, so that they will enjoy the powers of entry and inspection described in the Bill.
I hope that the noble Lord, Lord Brooke, can accept that his amendment could cause confusion. I therefore ask him not to press it.
Lord Brooke of Sutton Mandeville: My Lords, I am grateful to the Minister for the thoughtful way in which she responded to the tone of the amendments. In light of what she said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Brooke of Sutton Mandeville moved Amendment No. 43:
- Page 8, line 17, at end insert "or any other person who, or organisation which, the licensing authority considers may be affected by the use of the premises for licensable activities"
The noble Lord said: My Lords, in moving this amendment, I shall speak to Amendments Nos. 44 to 49 and Amendments Nos. 130 and 131. I shall speak to the subsequent ones on a group basis.
Amendments Nos. 130 and 131 are consequential on Amendments Nos. 43 and 46. The local authority has a duty under the convention to hear the representations of those whose rights may arguably be affected by its decision. The duty arises under the doctrine of proportionality that underlies the whole convention. The Bill will require the local authority to refuse to hear from those who do not fall within the definitions of interested party, even if their convention rights were affected by the decision.
Who might be affected by that decision? Article 34 of the convention defines such a person, who is called a "victim", as,
- "a person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the Convention"—
Section 7 of the Human Rights Act 1998 allows any person who is,
- "a victim for the purposes of Article 34 of the Convention",
It is difficult to list all the rights that may be at issue in licensing, but there is sufficient case law to suggest that the following may, but not necessarily will, be engaged. Article 2 refers to safety issues, and by extension to crime and disorder; Article 3, to positive obligations to prevent inhuman treatment caused by noise, for example; and Article 6, to common law rights in nuisance and negligence. Articles 8, 10 and 14 refer to non- discrimination with respect to convention rights afforded, particularly in the case of qualified rights. Article 1 of Protocol 1 is also relevant.
Amendments Nos. 43 and 46, and the amendments consequential to them, would ensure that all those who have convention rights that may be violated by the licensing authority have the right to make representations in licensing matters. The safeguard against abuse of rights of audience lies in the right of the licensing authority to make the decision as to whether the rights are engaged, which is provided by the amendment, and in the rights to shut out frivolous and vexatious representations in other parts of the Bill.
I have tabled Amendment No. 44 because Clause 13(3) introduces unnecessary restrictions on which members of the public can object to the grant of a premises licence. Under present law, it is not necessary for a person to live in the vicinity of the premises for his objection to be considered by a local authority or the licensing justices. Any person who can show that they,
- "may be affected by the use of the premises for licensable activities",
The removal of the restriction is particularly important considering the requirement that the Bill imposes on licensing authorities to grant in the absence of "relevant representations", whether or not the grant of the application would promote the licensing objectives or be in accordance with the authorities' licensing policy or be consistent with the Secretary of State's guidance. The right of an "ordinary person" to object to the grant of a premises licence will be especially important, given that he has no such right to object to the grant of personal licences in Clause 118 or the holding of temporary events in Part 5.
Amendments Nos. 45 and 48 make reference to a change to a "person or" body. They would allow individuals to represent people—in other words, a solicitor, a friend or a relative. Amendments Nos. 47 and 49 relate to the understanding that the Government accept that other organisations, such as schools, trade unions and hospitals, can make
representations in their own right. I believed that the Bill would be amended to make that clear on Report. If that is not done, a BUPA hospital, being in "business", could make representations, for example, while an NHS hospital could not. No such amendments seem to have been tabled, so I have tabled my own as a probing amendment, to find out what the state of play is. I beg to move.
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