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Lord Hylton: My Lords, will the Minister say whether loud music from pubs in the early hours of the morning will be adequately covered by the expression "public nuisance"? Or should we rely on the expression "living amenity"? The noble Lord the Minister said that "amenity" was imported from town planning legislation, but is it substantially modified by adding the word "living", which I imagine would include residents sleeping in close proximity to noisy pubs?

Baroness Oppenheim-Barnes: My Lords, I agree with everything that has been said so far by my noble friend Lady Buscombe and others on this amendment. To try and narrow it down to the action that someone

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might take is insufficient. The occasional opening and closing of a door at four o'clock in the morning would not probably constitute a public nuisance, nor would the continuous revving up of motorcycles, because if local residents were to report that to a noise officer, he would say, "This is an intermittent noise. There is nothing I can do about it, because if I put my machinery in, it will not be consistent. Therefore, I have no powers to act and I can make no recommendations". It is important that the Minister takes account of that point as well.

Lord Peyton of Yeovil: My Lords, I strongly support my noble friend on the Front Bench and the noble Lord, Lord Phillips. The Government seem to be taking a rather cavalier attitude to all the offences covered by the simple phrase "public nuisance". People always assume that they understand the public, but many do so wrongly. There is an unusual volume of evidence showing that the public simply do not understand that cavalier attitude to the offence of public nuisance. I understand the difficulties of enforcing it, but I hope that the Government will understand that and that they will not think that "guidance" is a simple alternative to forbidding an offensive practice. The world is littered with guidance. The roads are paved with guidance and people walk all over them. I hope that the Government will have second thoughts.

Lord Avebury: My Lords, along with my noble friends, I congratulate the Minister. I also appreciate everything that the noble Baroness, Lady Blackstone, has done and the assiduity with which she attends to questions put to her in writing—offline, as it were—which have a bearing on the matters that we are discussing on the Floor of the House.

I ask the Minister to respond to one of those matters; that is, the assurances that were given on the final day on Report, on 4th March, by the noble Baroness, Lady Blackstone. She said,


    "I recognise the genuine concern that because of the exploitation of the current A3 use class, 'superpubs' have been allowed to spring up by the back door".—[Official Report, 4/3/03; col. 779.]

She went on to describe the statement in another place by the Minister, Mr Tony McNulty, about the changes to the use classes order which would put pubs and bars into a separate class.

As the superpub is the source of a great deal of the public nuisance with which we are concerned in this amendment, will the Minister tell us what has happened in the three months since that assurance was given in this House? I am extremely concerned that if that change does not come into effect until after the Bill has reached the statute book, there will an incentive for the owners of premises to rush through changes while the loophole still exists. They will be able to do that, because they will be free of the restraints on opening hours and undertakings that are provided in the existing licensing regime. Will the Minister explain how that matter will be addressed under the licensing objectives that he proposes, and

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what interim arrangements will be put in place to prevent users taking advantage of the loophole that will exist between the date on which the Bill comes into force and that on which the A3 use class is split into two categories?

Lord McIntosh of Haringey: My Lords, I do not know whether it is fully appreciated, but the provision for public nuisance as opposed to public amenity is being criticised from two completely opposite sides. On the one side, the noble Baroness, Lady Buscombe, criticised the broadness of the definition of public nuisance. I have already made it clear in introducing the amendment that we are using the common law definition of public nuisance. The noble Baroness thought that a broad definition was not a good idea. I suggest that the broadness of the definition is actually helpful, because it enables licensing authorities to respond to individual circumstances. If we were to narrow it to amenity—and I repeat how narrow is "amenity" for the purpose of protecting the public—we would be losing something very significant.

From the opposite direction, the noble Lord, Lord Phillips of Sudbury, described public nuisance as a very high hurdle. In the flexible way in which it can be interpreted for the purposes of the Bill—in other words, in the common law sense rather than in the sense of the 1990 Act, which he did not refer to again, but which was the basis of his argument when the Bill was in this House— "public nuisance" provides all the protection that noble Lords could wish for.

The noble Lord, Lord Hylton, asked me about loud music in the early hours of the morning. That certainly is public nuisance. As the noble Lord, Lord Phillips, pointed out, car doors slamming and people coming and going is of course a public nuisance. It does not involve public amenity. Public amenity is a narrower term that is derived from planning law.

Lord Carlisle of Bucklow: My Lords, I accept the Minister's comments about the question of continuous loud noise. That would undoubtedly qualify as "public nuisance" that would be taken into account. Surely the matters that the noble Lord, Lord Phillips, mentioned do not amount to public nuisance, but they still affect the lives of those people living in the area. So, at the one stage it is a broad definition of public nuisance, but I cannot see that people going about their normal, legitimate lives, going to a public house at 2 or 3 a.m., inevitably causing noise while doing so, can be said to be causing a public nuisance. Whereas, the interests of those people living in the area may very much need to be taken into account in deciding whether it is appropriate to have a licence in that area at all.

Noon

Lord Phillips of Sudbury: My Lords, I am also grateful to the Minister for giving way, and for the intervention by the noble Lord, Lord Carlisle. Is the Minister seriously telling the House, and if so is it on the authority of those who advise him on legal matters, that a person—or indeed many people—coming and

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going to a village pub at 3 a.m. in a perfectly normal way will in respect of any of them constitute a private or public nuisance? I can assure him, not merely from long practice as a lawyer who has dealt with these matters, but as someone who has looked at eight of the standard textbooks, that that use, that behaviour, does not remotely constitute on the part of any of those individuals a public or a private nuisance.

Lord McIntosh of Haringey: My Lords, there are two answers to that point. I thought I had made both of them in my original speech. The first—which the noble Lord, Lord Phillips, does not give any credit to, and I understand his position, when he says that guidance is not strong enough to protect the public in this case—is that we are talking about statutory guidance that has the authority of Parliament and has to be approved by Parliament. I have given the undertaking that the statutory guidance which will follow the passage of the Bill will cover the points made in the original amendment in this House. The noble Baroness, Lady Buscombe, read out the wording of Clause 5(2)(c). I cannot give her an absolute guarantee that that precise wording will be introduced into the statutory guidance, because the wording is always a matter—the noble Baroness is a lawyer and I am not—for parliamentary counsel, and departmental lawyers will undoubtedly wish to pick that wording to pieces. However, I can give her the absolute assurance that the wording that will appear in the statutory guidance will reflect the spirit of the amendment that was carried in this House.

Baroness Oppenheim-Barnes: My Lords, on that point, can the Minister tell the House how Mr and Mrs Bloggs, living in a house and suffering from intimate noise—either by cars or loud music—from time to time are going to find a lawyer, legal aid or a means of pursuing their case? Someone will say that this is new legislation, that the statutory guidance is not very clear and that they cannot therefore recommend legal aid or whatever. Has the Minister taken into account that factor—the way that the individual will be faced with the problem and an undermined amenity as a result?

Lord McIntosh of Haringey: My Lords, these are intractable matters and are much wider than the issues presented by the Bill. There are difficulties. What does one do about a district nurse, for example, who returns from a night call and who has to slam her car door? These are not matters for licensing legislation. If there are faults with the wider legislation, then let us address those issues. However,—

Lord Phillips of Sudbury: My Lords,—


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