| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Hodgson of Astley Abbotts: My Lords, I have listened carefully to my noble friend's comments in respect of Amendment No. 62. He has not quite clarified the matter in my mind, or cleared away all my concerns.
As I understand the matter, Clause 18 will require the authority to grant the licence, provided that conditions have been properly met. If we removed subsection (2), the whole matter could be reopened again, and we would create a situation in which a second bite of the cherry was possible. That is an issue on which I have had concerns in the past, and on which I shall be concerned with amendments that we have yet to debate. I may have misunderstood the thrust of my noble friend's remarks, but his amendment seemed to introduce a degree of undesirable uncertainty.
Lord Avebury: My Lords, I have seen the correspondence to which the noble Lord, Lord Brooke, referred, and in particular the letter written by the DCMS to Jean Corston MP, who has the chair on the Joint Committee on Human Rights. That left me with some residual anxieties.
The DCMS appears to rely entirely on the operating schedule to set these matters correctly in their context. The letter says that if,
- "the operating schedule does not address any of the matters it should address e.g. it does not set out the steps which the applicant will take to promote the prevention of public nuisance, the duty imposed upon a licensing authority in clause 18(2) to grant the application would not apply".
I look at that the other way around. If the operating schedule complies with the licensing authority's requirements and does not contain anything that explicitly contravenes the licensing objectives, the duty to grant the application under Clause 18(2) applies. There is no explicit mechanism by which the licensing authority can take into account the matters, as the noble Lord, Lord Brooke, believes it should. The original correspondents—the Meard and Dean Street Residents' Association—first raised that matter with the Select Committee.
Will the Minister explain the mechanism by which human rights considerations are to be considered, in the event that the operating schedule does not contain anything that explicitly contravenes the licensing objectives set by the licensing authority?
3.45 p.m.
Baroness Blackstone: My Lords, the amendments strike right at the heart of the Bill. They tip the balance too far in favour of the licensing authority. I was not
surprised that the noble Lord, Lord Hodgson, intervened in that regard. They would increase massively the regulatory burden on the industry, the cost of running the system and the ability of the new licensing regime to promote the diversity of provision in the late-night economy that we hope will do so much to make our cities safer and more attractive.The amendments would remove from the Bill the basic principle that hearings must be convened only when relevant representations have been made. The Government firmly believe that, when the experts are satisfied that a particular application raises no issues that might undermine the licensing objectives, it should normally be granted automatically and administratively, with no costly or burdensome hearings required. Amendment No. 62 and those consequential upon it would totally undermine that principle.
Let us examine the responsible authorities—the experts—under the Bill, who will have a voice on applications. They include the police, the fire authority, the local health and safety authority and the environmental health authority. It also includes, as a result of action we have taken to respond to issues raised in this Chamber, the local planning authority. At least two of those bodies— the environmental health authority and the local planning authority—will, in the vast majority of cases, be drawn from the same local authority as the licensing authority. Interested parties include local residents and businesses, and organisations that represent them. All those organisations and individuals can make representations on an individual application.
Given the range of opportunity for concerns to be raised about an application, it is surely totally unnecessary for a hearing to be held where no representations are received from those quarters. In such circumstances, there is no reason for the public interest regulatory role of the licensing authority to come into play. The degree of scrutiny afforded by the Bill will ensure that, when problems arise, the chances of them not being picked up are absolutely minimal.
In response to the point made by the noble Lord, Lord Avebury, I should say that the Joint Committee on Human Rights, in its latest report on the Bill, found that the provisions which would result in the grant of an application for a premises licence where no representations are received were compatible with convention rights.
Amendments Nos. 65 and 66 would allow the licensing authority, under circumstances in which no relevant representations had been made and therefore no hearing was required, to attach conditions to the licence that were,
- "consistent with the licensing policy and planning guidance",
Similar issues arise in relation to Amendments Nos. 69, 89, 101, 118, 141, 154, and 159, which would allow the licensing authority, when holding a hearing, to take into account, in addition to relevant representations, "any other material considerations". Again, the Bill is designed to focus on a clear and transparent set of licensing objectives. "Other material considerations" is so vague as to make it nearly impossible for a licensee to produce a well thought-out and effective application.
Amendments Nos. 78 and 149 would give the licensing authority more latitude in its requirement to notify an applicant of a decision following a hearing. Instead of being required to notify the applicant of its reasons for taking any of the steps mentioned in Clause 18(3)(b), it must simply give reasons for its overall decision.
I recognise the wish to remove the perceived strictures on the licensing authorities in that respect, but it again tips the balance too far. It will be of great importance not only to individual licensees but to the trade in general to build up experience of the type of action a licensing authority is likely to take in relation to a particular application. That will improve the quality of applications over time and, I hope, further reduce the need for hearings. It is vitally important that reasons for decisions are provided which are sufficiently detailed so that those affected by them can decide whether to challenge them.
These amendments pull the Bill apart. I very much hope that they will not be pressed.
Lord Brooke of Sutton Mandeville: My Lords, I am most grateful to the Minister for the trouble she went to in responding. I am also in the paradoxical situation of thanking the noble Lord, Lord Avebury, for coming in in support of me with his particular expert knowledge. Of course I express appreciation to my noble friend Lord Hodgson, whom I recently assisted in a small pairing matter, for having drawn attention to infelicities in Amendment No. 62.
The Minister was kind to respond to Amendment No. 66, to which I had not actually spoken. As a plea is contained in what I would have said, I shall allude to it in responding to her. The point that I would have made is that the licensing authority must be able to use its own knowledge in deciding the weight of representations and not burden residents with providing the evidential base. Many residents will be lay people and it may be the first time that they have made representations or appeared at a hearing. The local authority must be able to decide the weight to give to representations even when these have not been articulately put, let alone founded upon some sort of evidential base. Not to do so would be to create a complete inequality under the European Convention on Human Rights. Local authorities will have knowledge from registers held and from inspections and their other functions, but that evidence must be capable of being brought to bear.
The plea that I was going to make is that this matter might be considered in guidance. Given the problems encountered by those making representations without professional experience, guidance might afford a degree of latitude to the local authority in deciding the weight of those representations.
There were suggestions that, this morning, I shot a bolt into the heart of the Bill. So far no experience from outer space has avenged that act. However, it would be foolhardy of me to run the risk twice with the Minister. I shall not complicate her life further in this regard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 to 74 not moved.]
Clause 22 [Grant or rejection of application]:
Lord Brooke of Sutton Mandeville moved Amendment No. 76:
- Page 13, line 43, at end insert—
The noble Lord said: My Lords, the amendments grouped with Amendment No. 76 are all consequential to it and reflect the same concept in Clauses 35, 75 and 84.
The convention requires that the procedures by which convention and civil rights are determined create "equality of arms"; and convention rights, including the right to a fair hearing in civil matters (in Article 6), are subject to a requirement (in Article 14) that there should be no discrimination between people in analogous positions with respect to their convention rights. As currently drafted, the Bill seems to violate that principle because the licensee is given rights in this clause to commence trading as soon as the licensing authority has granted the application. However, in Clause 51(11), on a review where the licensing authority has made a decision to terminate or amend the licence, that decision is not given effect until after the time for appealing is over. That is an imbalance between the parties and a violation of the presumption against interference in Article 87.
The belief behind this amendment is that the most proportionate amendment is, first, to delay the coming into effect of extensions of the property rights that arise from a decision to grant a licence under Clause 18 until after the appeal is over and it has been demonstrated that there is a pressing social need for the restriction on residents' rights, which is the requirement in Article 8; and, secondly, to allow the licensee to continue trading after an adverse decision following a review under Clause 51 until the appeal has
"( ) A determination under this section does not have effect—
(a) until the end of the period given for appealing against the decision;
(b) if the decision is appealed against, until the appeal is disposed of."
Next Section
Back to Table of Contents
Lords Hansard Home Page