Supplementary memorandum by the Office
of the Deputy Prime Minister and the Department for Culture, Media
and Sport (DCMS) (RL 20(b))
RE -LICENSING:
HEARING ON
31 OCTOBER 2005
At the Committee's hearing on the subject of
Re-Licensing, the Chair indicated that it may be helpful for us
to confirm in writing the position regarding the right of any
local councillor or Member of Parliament to make representations
on behalf of constituents under the provisions of the Licensing
Act 2003.
The Government's position on this issue has
not changed since the Licensing Bill was first introduced to Parliament
in November 2002. The Bill was amended by the House of Lords so
that Members of the European Parliament, Members of Parliament
and the local ward councillors for the constituency or ward in
which the premises are situated were included specifically as
"interested parties". An interested party is a person
or body that has the right to make representations when an application
for the grant or variation of a premises licence or club premises
certificate is made; and has the right to apply to the licensing
authority for a review of the licence or certificate. The Government
reversed this Amendment at Committee Stage in the House of Commons
because it was unnecessary and inappropriate. I refer you to the
Committee's debate on the Government Amendment which restored
the original position[7].
You will note that members of the Committee from the opposition
parties generally supported the change. The House of Lords later
itself accepted the amendment made by the House of Commons.
In the light of the position initially adopted
by the House of Lords, the Government decided to make the position
clear in the Guidance under section 182 of the 2003 Act, which
was approved by both Houses of Parliament and formally issued
in July 2004, some six months before licensing authorities were
required to publish their own statements of licensing policy and
some seven months before the start of the transitional period.
All licensing authorities are required to have regard to the statutory
Guidance and their own statements of licensing policy when carrying
out their licensing functions.
Members of Parliament and local councillors
who themselves live in the vicinity of premises applying for the
grant or variation of a premises licence or club premises certificate
can obviously make representations to the licensing authority
in their own right as interested parties. They can also apply
for a review of the licence at any time. However, paragraph 5.32
of the Guidance approved by Parliament makes it clear that interested
parties (for example, a person living in the vicinity of a premises
or a body representing persons living in the vicinity) can specifically
request a representative such as a Member of Parliament or a local
ward councillor to make a representation on their behalf. In the
case of a ward councillor, it would be expected that any councillor
who is also a member of the licensing committee and who is making
a representation on behalf of the interested party would disqualify
themselves from any involvement in the decision making process
affecting the premises in question.
The position, as explained by Dr Howells during
the Bill's Parliamentary stages, is that there is nothing in the
2003 Act which prevents any person, solicitor, friend or elected
representative (a local councillor, MEP, MP or Member of the National
Assembly for Wales) acting on behalf of an "interested party".
There is therefore nothing which actively prevents any MP or local
councillor representing a constituent that lives in the vicinity
of the premises either by making written representations on their
behalf, applying for a review or by speaking on their behalf at
a hearing. What an elected representative, who does not live in
the vicinity of the premises his—or herself, cannot do is
to make representations on his or her own behalf. This position
was endorsed by the whole Committee scrutinising the Bill.
However, despite the position explained during
the Parliamentary stages of the Bill and in the Guidance, the
issue has continued to raise its head and has been mentioned several
times on the floor of the House. For this reason, the Secretary
of State for Culture, Media and Sport wrote on 30 September this
year to licensing authorities reiterating that there is nothing
to prevent a local councillor from making representations if asked
to by residents, nor from seeking the views of their residents
on licensing matters as they would for any other issues.
We are aware that part of the confusion has
arisen in connection with rules in the Code of Conduct for members
which govern disclosure of interests and withdrawal from meetings
where members have relevant interests, rather than with the Licensing
Act 2003 itself.
The background is that every authority is required
to adopt a code of conduct that sets out rules governing the behaviour
of its members. Each code must include the provisions of the Model
Code of Conduct approved by Parliament in November 2001. Authorities
can choose to add their own local rules to the Model Code if they
wish, although most have adopted it without additions.
The Standards Board for England is responsible
for policing the Code of Conduct for members, and for publishing
guidance on its operation. Last year, Nick Raynsford invited the
Standards Board to undertake a review of the Code, and to consider
lessons learnt over the three years of the operation of the Code.
It is essential for members to be able to understand fully what
is expected of them by the local conduct regime, including the
code of conduct, and for the code to reflect the way modern councils
work. The Board received over 1,200 responses to its consultation,
and many of these commented on the need for changes to the rules
relating to personal and prejudicial interests.
As we explained to the Committee on 31 October,
the Office of the Deputy Prime Minister is currently undertaking
a review of the local government conduct regime as a whole This
includes consideration of recommendations for changes to the Model
Code of Conduct made by the Standards Board following its review,
as well as the Committee's own recommendations following its Inquiry
into the Role and Effectiveness of the Standards Board and recommendations
on the local ethical framework in the Graham Committee's 10th
report. We plan to announce our conclusions on the way forward
in the next few weeks.
In addition, we indicated to you at the hearing that
we would be happy to consider any recommendations that the Committee
bring forward.
We also intend to review the Guidance issued
under section 182 of the 2003 Act from 24 November and if we can
make the existing advice clearer, we will attempt to do so.
Phil Woolas MP
ODPM
James Purnell MP
DCMS
7 Licensing Bill [Lords] in Standing Committee D,
6th sitting 10 April 2003 (morning) , Col 224-229 http://www.publications.parliament.uk/pa/cm200203/cmstand/d/st030410/am/30410s06.htm Back
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