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Baroness Blackstone: Amendment No. 437 would enlarge the powers of the police and the licensing authority officers to enter qualifying clubs. It would, for example, allow a licensing authority officer to enter a club to check whether entertainment not covered by its club premises certificate was being provided. Clause 174 needs to be read in conjunction with Clause 175. Clause 174 is all about investigating and checking. It does not require reasonable grounds for believing that an offence has been, or is about to be, committed. In contrast, Clause 175 deals with a case in which the police have reason to suspect the commission of an offence under the Bill. The later clause confers on the police a power of entry to the premises, which may be premises of any kind, including club premises.
The Government believe that Parliament should be cautious about extending rights of entry to qualifying clubs, especially if, as in this case, the power to enter carries with it the power to use reasonable force, if necessary. Qualifying clubs are, by definition, private premises not open to the general public, and there is a long tradition of responsible and law-abiding operation in the club movement. We do not have a serious problem of abuse. Of course, from time to time,
If the police have reasonable grounds to suspect that offences under the Bill are being committed, Clause 175 comes into play. The powers of entry and search provided in Clause 95 may also be relevant. Those responsible may be prosecuted, and the club will be at risk of losing its premises certificate. The amendment would give the police and licensing authorities a right to enter club premises without having any reasonable suspicion of the commission of an offence there. They could do so simply in order to check whether everything was in order. In the absence of real evidence of widespread abuse, that would be a step too far and would undermine an important distinction between clubs and licensed premises that are open to the public. We cannot support Amendment No. 437.
Amendment No. 438 would substantially enlarge the powers of local authority licensing officersand, indeed, other officialsin a way that cannot be justified. As I said, Clause 175 gives the police the power to enter any premises, using reasonable force, if necessary, if they have reason to suspect that an offence under the Bill is being committed. It is a far-reaching power, but we believe that it is right to enable the police to act promptly if they encounter circumstances that give rise to reasonable suspicionfor example, if private premises are being used in practice as an unlicensed pub or disco. However, it is one thing to confer the powers on police officers but quite another to extend them to officials whose training and responsibilities probably relate only to licensing or environmental health law.
The amendment would mean that a local authority licensing officer could break down someone's front door and enter his home if the officer reasonably suspected that alcohol was being kept there with a view to its unlawful future sale. Leaving aside the point that that has nothing to do with environmental health, I invite the Committee to consider whether that is something that we want licensing officers to do. It is fairly obvious that we do not. It is a matter for the police. If the argument is that, in practice, local authority licensing officers would not use powers of entry in such cases, the case for conferring such powers in the first place falls away.
Local authority officers are not equipped to use the far-reaching powers conferred by Clause 175. If they come across circumstances that lead them to believe that such powers should be used, they should tell the police and co-ordinate follow-up action with them. If local authority staff tried to use powers of forcible entry on their own, they would risk creating incidents of violence or disorder with which the police would have to deal.
The noble Lord said: If magistrates were able simply to award costs without it being clearly understood that such costs were to be awarded only in exceptional cases, it would act as a deterrent to objectors who wished to appear before them, for whom the existing deterrence is already considerable.
Baroness Buscombe: I rise to speak to Amendments Nos. 439, 441ZA and 443, which stand in my name and that of my noble friend Lord Luke. In relation to Amendment No. 439, Clause 176 allows applicants for and holders of licences and club premises certificates, applicants for provisional notices and interim authority notices and applicants for temporary event notices, responsible authorities and interested parties, rights of appeal to a magistrates' court against decisions of a licensing authority. The appeal mechanism is set out in Schedule 5 to the Bill.
Clause 176 sets out the powers of the magistrates in determining such appeals. However, it does not currently direct them as to the factors that they should take into account in determining such appeals. As the licensing authority is required to formulate, state and review its licensing policy under Clause 5 and have regard to it in exercising its licensing functions, it appears self-evident that in assessing the adequacy of a licensing authority's decision on appeal, the court should be obliged to have regard to the authority's licensing statement.
Amendment No. 441ZA stands in my name and that of the noble Lord, Lord Cobbold, who is unable to be in his place today. It is largely dependent on whether fees will be subject to variation by licensing authorities. We shall know more on that issue in the near future when guidance is issued. Does the right of appeal against fees mean that every applicant will claim that they are being over-charged for their premises license? I would suggest that the answer is "not necessarily". There is much to be said for the right to question a decision on fees. If the holder of the premises is prepared to go through the administrative process of appealing, it is likely that they would have a legitimate claim. We believe that the matter should be discussed.
In relation to Amendment No. 443, licensing committees on Benches are usually no larger than 20 in number at present. They develop specialist knowledge in licensing law. Perhaps I may add that this amendment has been developed in conjunction with the Justices' Clerks' Society. Schedule 5 allows the appeal to be heard by any magistrate. That would have severe implications on training resources and development of expertise.
With an average Bench of 200 justices, the licensing committee would currently be no more than 20 justices. That would provide for a small, coherent unit whose members can be trained in this specialist area of law. The number of justices means that they will frequently sit on licensing matters. If all 200 justices have to be trained, that will be both time-consuming and expensive. It will also mean that any justice will sit on a licensing appeal only infrequently and thus not develop any level of expertise. Our amendment seeks to remedy the situation while keeping in line with the current position regarding justices' involvement in licensing matters.
Baroness Blackstone: It is of course only right that all parties involved in the licensing process have available appropriate remedies and freedom to challenge decisions, where appropriate. However, I do not believe that these amendments are necessary.
Amendment No. 438A would allow a magistrates' court that had heard an appeal to award costs only in exceptional circumstances. Perhaps I may say to the noble Lord, Lord Brooke, that I do not agree with that principle. Courts should be allowed to award costs to any party involved in an appeal as they see fit. That is not a novel idea peculiar only to this Bill. It is the way in which the courts operate in the vast majority of cases.
Clause 176 concerns the mechanism of appeals. It sets out the three courses of action that a magistrates' court may take when hearing an appeal against the decision of a licensing authority. These courses of action are to dismiss the appeal; to substitute a decision for the original decision; or to remit the case to the licensing authority to dispose of in accordance with the direction of the court.
What the clause does not seek to do is to tell the court, or those who are parties to the appeal, how to conduct their case. The licensing policy may be the main focus of the appealfor instance, if an appellant believes that a decision made under it is wrong because the policy itself has not been made with proper regard to the Bill or its guidance. Neither party in an appeal may refer to the policy to support its argument. That is entirely proper.
If the magistrates' court were required to take into account the licensing policy, its discretion would, in effect, be unfairly fettered. It would have little choice but to uphold any decision made by the licensing authority that was reasonably based on the licensing policy. It would deny appellants the opportunity to air their grievance that the aspect or aspects of the licensing policy on which was based the decision against which they were appealing. Furthermore, it must be right that the court considers the case before it on its individual merits, taking into account the normal rules of admissibility of evidence.
I do not believe that the Government should interfere with the work of the magistrates' courts in the way that this amendment seeks to do. It would be to the detriment of all involved, particularly appellants.
I have stated before that fees will be set centrally by the Secretary of State, following consultation. There will be no scope for variation by the licensing authority and, as a result, no need for an appeal against them. As I have explained previously, while the exact level of the fee is yet to be decided, we currently estimate that the one-off fee for a premises licence would range from £100 to £500, depending on the size of the premises. In the majority of cases, fees will be smaller than under the present systems. There will of course be only a single licence to apply for. In the majority of cases, there will be no need for a costly legal hearing just to obtain a licence.
With fees set centrally, there will be no scope for the enormous variations that the industry faces at present. The principle that fees will be fair and proportionate would be undermined by Amendment No. 441ZA.
In tabling Amendment No. 443, I believe that the noble Baroness, Lady Buscombe, has in mind that given the transfer of licensing functions to local authorities, we should preserve a role for licensing justices, with all their experience and specialist knowledge, as the appeal body. However, they will not have any experience of the new system set out in the Bill. That would require training by the Magistrates' Association and the Lord Chancellor's Department, in the same way as anyone coming new to the system and serving on an appeal body.
Furthermore, the amendment would inject a degree of inflexibility into the system. It was largely for this reason, as well as for reasons of cost and accessibility, that so many stakeholders and individuals who responded to the White Paper asked for a change in the proposal that appeals against licensing decisions would be heard by the Crown Court. We were persuaded by the responses received that it would be quicker, cheaper and just as effective for those appeals
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