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Lord James Douglas-Hamilton: The hon. and learned Member for Fife, North-East (Mr. Campbell) speaks from considerable experience in handling such cases. However, I remind him of the right of appeal to which reference is made in the Bill a few paragraphs later.
I am grateful to the hon. Member for Dumbarton(Mr. McFall) for explaining the purpose of the amendment. In Committee, we debated the pros and cons of the wording of the present characteristic. One of the purposes of the Bill is to provide a framework within which licensing boards will be able to make their own definition of relevant events. That is achieved by setting out certain characteristics that provide local authorities with the flexibility to address a problem whose nature may change over time.
The hon. Member for Perth and Kinross(Ms Cunningham) is correct in thinking that we did not want to narrow that flexibility too much. A change was proposed in Committee that we felt was too restrictive and would have fettered the board's discretion. However, I promised to consult the Convention of Scottish Local Authorities on the matter, and it responded with concern. It made clear its strong opposition to the amendment tabled in Committee. It felt that it would not assist boards in any way and would prevent their discharging their functions properly. We listened to the advice from the practitioners, which effectively confirmed our original belief.
Dr. Norman A. Godman (Greenock and Port Glasgow):
What guidance can an objector secure? I speak not of a chief constable but of someone who lives nearby and does not have the means to obtain legal advice. Are there any guidelines for such objectors?
Lord James Douglas-Hamilton:
No. However, the hon. Gentleman may submit proposals to cover that issue in the guidance. I sent a copy of the guidance to all members of the Committee. The hon. Gentleman escaped serving on the Committee on this occasion, so I shall send him a copy. It is not too late for him to propose any amendments or drafting changes if he so wishes. We shall look carefully at any suggestions that he makes.
Mr. Wallace:
In replying to my hon. and learned Friend the Member for Fife, North-East (Mr. Campbell) earlier, the Minister said that someone who was affected by the amendment would have the right of appeal. Does he agree that the right of appeal as set out in new subsection (5) relates to the terms of any condition that might be imposed under a subsection? The amendment addresses the definition of an event to which conditions might apply. It addresses not the terms of the condition but whether any conditions should apply at all. In that case, what legal remedy would be available to someone who feels that the licensing board has taken account of unsubstantiated tittle-tattle?
Lord James Douglas-Hamilton:
The right of appeal refers also to the refusal of consent under subsection (4)(a). We consider that to be an important safeguard for the individuals concerned.
Amendment No. 22 is far less flexible than the reasonable suspicion test which was proposed in Committee. It also begs a number of questions: from whom will the specified information come, what form will it take, what evidence will be required to support it, what must be revealed to the licence holder, and so on?
There is no question that, when considering whether to apply the relevant characteristic, a board could not have regard to hard information provided by a reputable source such as the police.
As drafted, the provision allows the board to take account of other issues, such as local experience, which the amendment would prevent. I understand that hon. Members are concerned that boards may exercise their discretion too freely and that their decisions may have important consequences for licence holders. We believe that the present wording allows boards to take note of their own or other parties' apprehensions that drugs offences may be committed at events held on premises in respect of which a licence application has been made. On the basis of that explanation, I hope that the hon. Member for Dumbarton will withdraw the amendment.
Mr. McFall:
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 2, in page 2, line 4, at end insert--
No. 3, in page 2, line 6, after 'above', insert
Mr. Deputy Speaker:
With this, it will be convenient to discuss also Government amendment No. 6.
Lord James Douglas-Hamilton:
Clause 1 allows licensing boards to sub-delegate some of their powers to set conditions to third parties. The hon. Member for Dumbarton (Mr. McFall) tabled an amendment in Committee to remove the power of sub-delegation from the Bill, because it was felt that, as licensing boards were now being given a wide power to impose conditions directly under licence as opposed to using the byelaws route proposed originally, they should retain sole responsibility for their action.
I undertook to consult the Convention of Scottish Local Authorities on the matter and to return to it when I had the convention's views. COSLA does not object to the retention of the provision, but it feels that a board's ability to operate the requirements of clause 1 properly would not be affected adversely if it were removed. In light of COSLA's response and the general feeling that the boards should be solely responsible for the matter, I accept that the reference to sub-delegation should be removed from the Bill. The hon. Gentleman will recall that that was his proposal in Standing Committee. Amendment No. 4
achieves that objective and, in so doing, I hope answers the question raised by the hon. Gentleman. Amendment No. 6 is a consequential drafting amendment. I commend the amendments to the House.
Mr. McFall:
I thank the Minister for taking on board those concerns. We are satisfied with both the amendments.
Mr. Menzies Campbell:
One practical matter arising out of the fact that there is to be no delegation of responsibility is that the board will have to meet formally to deal with such cases. Some consideration may have to be given to the fact that the board may have to meet at short notice and that may have administrative consequences for the licensing boards. Although I accept the amendment and the basis on which it has been proposed, boards may have to overcome some consequential administrative difficulties to fulfil their responsibilities which are incapable of delegation.
Amendment agreed to.
Amendments made: No. 5, in page 2, line 16, after 'condition', insert
Mr. McFall:
I beg to move amendment No. 25, in page 2, line 24, leave out 'all reasonable' and insert 'such'.
Mr. Deputy Speaker:
With this, it will be convenient to discuss amendment No. 26, in page 2, line 25, after 'steps', insert
Mr. McFall:
Amendment No. 25 affects clause 1(7) in which the Bill sets too high a standard and is not sufficiently subjective. That is a matter for debate, but I would like the Government to consider it.
Amendments Nos. 25 and 26 would ensure that the defence of reasonable compliance relates only to such steps as are reasonable to the licence holder, the employee or the agent. Under the Bill as drafted, the individual would need to take "all reasonable steps". I would ask the Minister whether it is reasonable to expect people to take every reasonable step. One can only expect people to take the steps that seem reasonable to them. Amendment No. 26 would inject some subjectivity into the test, instead of the absolute requirement that appears to be in the Bill.
Lord James Douglas-Hamilton:
We looked at the subsection quite hard. New section 18A(6) provides that a licence holder, his employee or agent shall be shall be guilty of an offence if he contravenes any condition attached to the licence or permission under new subsection (1).
'(3A) The Secretary of State may, by order, prescribe the conditions which are to be attached to a licence or permission under this section, and an order made under this subsection may prescribe--
(a) the terms of any such condition; or
(b) the description of any such condition, the terms of which shall be specified by the licensing board,
and such an order shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.'.
'or to the power of the Secretary of State to prescribe terms or descriptions of conditions under subsection (3A) above'.--[Lord James Douglas-Hamilton.]
Lord James Douglas-Hamilton:
I beg to move amendment No. 4, in page 2, line 10, leave out from 'board' to end of line 13.
'(other than the terms of any condition prescribed under subsection (3A) above)'.
'as appear reasonable to him'.
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