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Police Reform and Social Responsibility Bill
|©Parliamentary copyright||Prepared 11th February 2011|
Publications on the internet
Police Reform and Social Responsibility Bill
Police Reform and Social
The Committee consisted of the following Members:
James Rhys, Committee Clerk
† attended the Committee
Vernon Coaker (Gedling) (Lab): On a point of order, Mr Chope. Have you or the Clerks received contact from the Minister with respect to the code of practice on operational independence? The Minister has told us that he was working on it, but he knows the importance that the Committee and I attach to the publication of a draft, even a draft of a draft of a draft. I wish to put on record how important it is for the Committee and Parliament to have it in front of them while the Bill is going through its various parliamentary processes.
Diana Johnson (Kingston upon Hull North) (Lab): Good morning, Mr Chope and members of the Committee. This is my first opportunity to welcome you to the Chair, and it is a pleasure to serve under your chairmanship today.
The clause allows relevant licensing authorities to be classified as responsible authorities. As the Committee is well aware, a responsible authority can make representations based on the licensing objectives under the Licensing Act 2003 on applications for the granting or variation of licences, premise licences, club premises certificates and reviews. Other responsible authorities are the police, fire authorities and local authorities when exercising functions such as health and safety,
I want to press the Minister on why the clause is included in the Bill, because it will create a situation in which a relevant licensing authority can make representations to itself based on the four licensing objectives in relation to an application or review, and then decide the application or review. Various scenarios could arise as a result—for example, when a licensing officer’s views differ from those of a responsible authority or interested party. Are the views of the licensing officer on behalf of the licensing authority to take precedence? If a final decision on a matter has to be made by a licensing authority, the presumption might be one of bias as an inevitable consequence of the clause.
Dr Julian Huppert (Cambridge) (LD): Is the hon. Lady aware that what she has outlined is similar to the current position with county councils and development control when they determine their own applications? Does she accept that such practice is a continuation of the same principle?
Diana Johnson: I am grateful to the hon. Gentleman for raising that issue. There is a similar situation in Scotland, and I shall come back to some problems that have arisen as a result of the responsible and licensing authorities sharing functions.
In submissions to the Committee, many organisations have raised the issue. In effect, they are worried that the relevant licensing authority will become both prosecutor and judge, and hold a dual role when they need both to be seen as impartial and neutral and to act impartially and neutrally. Article 6 of the convention on human rights guarantees the right of applicants to a fair trial and provides the right to a fair and public hearing with public judgment, an independent and impartial tribunal established by law, and a reasoned judgment.
The right to a fair hearing under article 6.1 is concerned primarily with procedural fairness, and justice should be both done and seen to be done. To pick up on the point made by the hon. Member for Cambridge, legal issues have arisen in Scotland when, under the Licensing Act (Scotland) 2005, licensing boards are effectively in the position that the Government now wish to place licensing authorities in England and Wales. The clause could open up many legal challenges arising from the decisions of the licensing authority to the magistrates court with associated costs and delays.
Why have the Government decided on such a provision, especially in light of the changes to the Police and Crime Act 2009, which allowed councillors to make representations about licences? Where is the evidence for the need for the change? I would be grateful if the Minister set out his thinking on why the clause is necessary. Is the present situation not sufficient?
The explanatory memorandum acknowledges the validity of my concerns about clause 103 and talks about the need for statutory guidance. However, such guidance is non-binding, so would it not be better to look at separating the responsibilities, as set out in the Gambling Act 2005? Will the Minister also look at the proposal to nominate
In the submissions to the Committee, concern has been raised about scrapping the Local Authorities (Model Code of Conduct) Order 2007, which provides safeguards that businesses could rely on when dealing with licensing committees. I would be grateful if the Minister addressed some of those concerns about the clause.
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): May I, too, welcome you to the Chair, Mr Chope, as this is my first opportunity to do so in the Committee? I also welcome other members of the Committee. It is a privilege to be sitting on the Treasury Bench this morning, and this is the first opportunity that I have had to do in such a Committee.
Over the past few years, the hon. Member for Gedling and I have spent long hours in generally interesting and challenging debates, although we were in slightly different positions. I always found his approach to Committee debates fair, considered and reasonable, and I will seek to take a similar approach in considering the issues before us, although I suspect that we will not be able to get on to the judgment in R v. McCann or the sliding scale of probabilities in relation to the burden of proof. Such things have taxed the hon. Gentleman and me over the past few years, but perhaps we will leave them for a future occasion.
Let me turn now to clause 103. Licensing authorities are expected to grant licence applications, unless they receive relevant representations about the impact of the application on the promotion of the licensing objectives. That means that even if they have concerns about a new application or a change to an existing licence, they can refuse the application, impose conditions or revoke the licence only if local residents, businesses or responsible authorities such as the police object.
In moving to alter the current situation, we decided that the proposal would ensure that licensing authorities are better able to respond to the concerns of local residents and businesses by taking the necessary actions to tackle irresponsible premises without having to wait for representations from other responsible authorities. I heard what the hon. Lady said about safeguards, and I will come to the Gambling Act, which she specifically mentioned.
The clear point, however, is that any actions will need to be justified on the basis of promoting the licensing objectives. Licensing authorities are accountable for their decisions, which they must ensure are evidence based. Moreover, licensing authorities’ decisions can be the subject of an appeal to the courts, and that represents another safeguard, ensuring the fairness of the process. As the hon. Lady would expect, we have also considered compliance with the European convention on human rights, and we are satisfied that the provisions meet the necessary tests.
The provisions will certainly strengthen licensing authorities’ powers and enable them to be more responsive to communities’ needs. We realise that the provision will mean that the licensing authority will be able to make a representation regarding a licence application, variation or review and then determine the same application. I hear the hon. Lady’s concerns about the need to ensure
Concerns regarding procedural fairness have been effectively addressed in the Act by ensuring that responsibility for different parts of the application process are divided between licensing officials. In other words, we seek to avoid any conflicts of interest, or any perception of procedural impropriety. That ensures that the licensing official acting as a responsible authority is not involved in the termination of the same application. The statutory guidance that we will introduce through this clause will state that this same separation of responsibilities should arise, under the Licensing Act 2003, to ensure that the licensing process remains fair. That is why we believe that the provisions in clause 103 are appropriate and reasonable, and that there are safeguards.
James Brokenshire: We believe that by putting that into statutory guidance, and by reference to statutory guidance, that will be effective. We believe that that is an appropriate way to deal with the issue and the concerns raised by the hon. Lady. We hear the concerns that have been raised, but the statutory guidance will make the procedural separation clear. We believe that that will address the concerns that some have sought to highlight.
Diana Johnson: First, it was remiss of me not to welcome the Minister to his position. We have debated elsewhere in the House, but I wish to extend my welcome today as we begin our scrutiny of the clauses relating to licensing.
The clause adds primary care trusts and local health boards in Wales as responsible authorities. I set out earlier what a responsible authority can do to make representations on the basis of the Licensing Act objectives relating to applications and reviews. Such authorities also have a role in setting the licensing policy of a licensing authority every few years. I would like the Minister to clarify one point about which I am concerned. Under the coalition Government legislation that is currently going through the House, we know that primary care trusts will be abolished shortly. New structures in the NHS will change with the GP consortia and with the role for local authorities to exercise public health functions, as well as the creation of public health and well-being boards. Will the Minister be able to give his view on where this responsibility, if clause 104 becomes law, will
In Scotland, they have already added an additional objective to the licensing conditions to include public health, so there would be a clear role for PCTs and local health boards to make representations on that general health objective. However, as they will be restricted to making their representations purely on the four objectives in the Act, can the Minister give an example of how this would work? When I looked at the Bill, I thought that it would be down to a PCT to identify a particular bar, for example, that was making an application for a licence, or was undergoing a review of a licence. To determine whether that bar was affecting the local A and E at the general hospital in a particular town or city, the primary care trust would be able to say, for example, that 10 customers of bar X ended up in A and E and therefore it wished to make representations on that basis. I am still a little concerned that that would not necessarily fit into the four objectives of the Licensing Act 2003.
If the Minister could clarify exactly how the measure will work, that would be helpful. It seems that the clause is a halfway house and that the Government will only make sense of it if they include public health as one of the licensing objectives. Why not have the PCT or health board as an interested party that could intervene when it has knowledge to impart about a particular licence rather than a blanket ability to make representations?
James Brokenshire: I am pleased that the hon. Lady has recognised the health impacts that licensing can have. We are certainly concerned about the impact of drunken accidents and injuries and the contribution that they make to A and E attendances, in which we have seen a significant rise of about 65% during the past five years. Ambulance and other costs to the NHS may be as much as £1.1 billion a year. That is a substantial cost to the taxpayer and a significant burden on our ambulance services and local hospitals. That is why clause 104 has been introduced to make primary care trusts and local health boards in Wales responsible authorities under the Licensing Act 2003.
We believe that health bodies have a clear interest in the existing Licensing Act objectives, which include public safety, prevention of crime and disorder and prevention of harm to children. We know that some PCTs already play a constructive part in licensing decisions, but we want to give them a formal role in the process. Making health bodies responsible authorities will ensure that they are notified of any new licence applications or licence variations, and they will be able to make representations directly to licensing authorities about the potential impact on the licensing objectives. They will also be able to request the review of a licence if they
Diana Johnson: I am very interested in that point, because that would have an impact on the licensing policy for a particular area. In specific applications and reviews, how would that information be used by the licensing authority?
James Brokenshire: I have already highlighted public safety and the prevention of crime and disorder licensing objectives. Attendances in accident and emergency departments from a particular location might indicate problems and would support the justification of a review of the licence. I think there is a way of using the experience and information gained. I do not know whether the hon. Lady has had the pleasure—it probably is not a pleasure—of going out with the ambulance service and actually seeing the challenges faced by paramedics and ambulance crews. They do tremendous work and I am sure that every member of the Committee would pay tribute to the work that they do in getting people home safely and in providing medical assistance and attention for people who are perhaps more than simply the worse for wear.
If specific patterns are building up in terms of ambulance attendances and what is actually feeding through into the accident and emergency departments, the relevant information and evidence, based on the four licensing objectives, can inform the decisions of the licensing panels.
James Brokenshire: I will address what the hon. Lady said about the licensing objectives, because she made a fair point about experience elsewhere. We consulted on that issue in preparing the Bill, and there was some support for the approach, although, as she might expect, the representations were not universally in favour. We said in our response to the consultation that we would keep the matter under review. We see some merit in adding prevention of harm to health as a licensing objective, but we want to do it in a considered way, alongside wider work to address the harms of alcohol to health, which is why we indicated in our consultation response that we did not intend to legislate at this stage but would consider the best way to do so in the future. We recognise the hon. Lady’s point and responded to it in the consultation, and we are keeping the matter under close consideration as part of our examination of how alcohol fits into wider public health work and the surrounding issues.
The hon. Lady highlighted the changes to PCTs, PCT abolition, and the move to Public Health England and the associated responsibilities for local authorities. It is clear that the provision will apply to PCTs, or to their replacements, the nature of which will be spelt out in the later legislation and will be part of the consideration of the health reforms and changes. We are clear about the abolition of PCTs and the need for that to revolve over into Public Health England, and also about how GP consortia might feed into the process, and that will be part of our examination as we move forward.
Steve McCabe (Birmingham, Selly Oak) (Lab): If a GP objects to a licence, will there be a standard requirement to declare any other financial interest or connection? For example, a GP consortium might be a business with other interests that might be licensed.
James Brokenshire: I am sure that that will be very much part of the review of the public health environment. Clearly, the Bill deals with PCTs, but there will be considerations as we move forward with the provision to ensure community level engagement in the licensing process. We think that that is important, and I get the impression that the hon. Lady recognises that it is important, in terms of the role that health plays in overall alcohol policy.
Diana Johnson: May I press the Minister on how the PCTs will be able to make representations on specific licence applications or reviews of such applications? Does he expect primary care trust to keep detailed records of the accidents and injuries that occur in particular licensed premises? Is that how he envisages the clause working?
James Brokenshire: PCTs will be able to provide robust and targeted evidence for licensing authorities to consider, by sharing anonymised A and E statistics and NHS data. Those data can include statistics on alcohol-related admissions to A and E departments and ambulance attendances, and can then be used as direct evidence and linked to one or more of the four licensing objectives. For example, a representation from a PCT could highlight a recurring association as intelligence that the licensing objective might be undermined. The crime reduction objective is directly relevant, as is the public safety one, as it includes the prevention of accidents and injuries, but clearly it will be for PCTs to work with their partners in the local health economy, including the acute trusts and the ambulance trusts. When patterns emerge, evidence and information is there, and that will better inform some of the licensing panels’ judgments.
Diana Johnson: These and the next two amendments relate to an important part of the Licensing Act 2003 and what the clause sets out to do. All members of the Committee will agree that it is important that local people and businesses feel able to voice their concerns about the granting, review and variation of licences. The narrow interpretation of “vicinity” in the 2003 Act may have inhibited that process. We all know that, currently, people making representations on a licence application need to be an interested party, and to have a relationship to the vicinity of the premises, which usually means that they have to live or be involved in a business in the vicinity.
The clauses that deal with licensing will remove the test of vicinity and the category of interested parties, and will allow anyone to make representations, although it is made clear that those representations cannot be frivolous or vexatious. My concern is about a bit of confusion in clause 105, which it would be helpful if the Minister could clear up. Some people think that the proposal will mean that any individual or business can make representations, no matter where they are based geographically—for instance, on an application for a licence in my constituency of Hull, representations might be made from an individual or a business based in London, Manchester or Birmingham. Is that what the Government intend? Looking closely, the clause refers to the local authority area, but I may have become confused when reading it. It would be helpful to have it made clear whether the provision will open the whole area of making representations to anybody or any business, or whether that is limited to individuals and businesses operating within the area of the licensing authority.
The amendments that we will move this morning take into consideration what is happening with the Gambling Act 2005, to which we have already referred. The general view is that the relevant sections in the 2005 Act work effectively and give protection to people who now feel excluded by the use of the vicinity test, but that they provide a framework for a licensing authority in considering representations and ensure that there is some link to individuals and businesses wishing to make representations about an application or a review. Will the Minister reflect on whether it would be helpful to the licensing authorities, in making decisions about representations, to have that framework in place to assist them? It may be helpful if he first set out the purpose of the clause, because there is confusion at the moment.
I want to raise with the Minister the question, if the clause is so drafted that it is open only to individuals and businesses in a local authority area to raise representations, of what happens in London boroughs, which often have a boundary down the middle of a road. In areas of Camden and Islington, which have many licensed premises, the middle of the road is the boundary, with one side Camden and one Islington. If
Nigel Mills (Amber Valley) (Con): I feel the need to speak on the amendment, but I apologise for detaining the Committee. All of us who have served as councillors are familiar with situations in which a licensed premises is causing trouble. Sometimes the walk home route from such a premises ends up going a way that no one predicted, and the people who are affected are not in the vicinity as defined by the current legislation. That is why I entirely welcome the Minister’s efforts to try and improve matters.
I am concerned about the amendment because of potential applications such as those that have been made in my constituency, where, on two occasions, the British National party has wanted to hold its national rally. A number of people may be affected by such activities and may, quite rightly, not want them to happen close to where they live or work. There was disturbance, trouble and violence at the BNP rally, which could have extended in a huge direction around the area. If such applications were received again, as many people as possible in the area should have the chance to object, given the wide potential for disturbance.
The amendment would make such objections hard to make, because there would have to be a high test to show that people were affected. That is hard when it is not known whether the potential trouble will go east into one town, or south or north into another. I understand what the hon. Lady wants to achieve with her amendments, but they might be a bit too tight for a licence application, and a council could cope with broader objections to the principle of an application. The amendment might have far more power in relation to a review of an existing premises, but I cannot support it for an application.
Steve McCabe: As my hon. Friend the Member for Kingston upon Hull North has said, the clause and the amendment raise the question, what exactly do the Government intend? It makes sense for the people who are likely to suffer a direct adverse consequence of the activities in a licensed premises to have grounds to object. There is a risk, however, that a whole host of other people will have the opportunity to object. What safeguards will be in place to stop that happening? If there is not a classic vicinity test, the potential will extend across the country. One of the briefings that we
It strikes me also that if such objections arise, the number of hearings could increase phenomenally. I do not know whether anyone has thought about the costs of such an increase; perhaps the Minister can say whether that has been considered. If it is possible for anyone anywhere in the country to object, in theory, to any licensing or renewal application, it stands to reason that there is potential for a phenomenally greater number of hearings. I cannot believe that the Government intend such a consequence. I would be grateful for any clarification the Minister can offer on how he envisages this particular aspect working.
James Brokenshire: There is a misapprehension on the part of Opposition Members on the application of the vicinity test. The clause will remove the vicinity test for interested parties in licence applications, but it also deals with the variations and the consideration that will then apply. I am confident—I will explain why—that there are adequate safeguards to ensure that Opposition Members’ concerns will not prove well-founded.
The hon. Member for Kingston upon Hull North made a specific point on whether this was somewhat limited and restricted. She is probably looking at clause 105(3)(a), which gives a definition of “interested parties” as
which is perhaps why she thought that there was an issue on boundaries and that someone could not object if they lived outside the boundaries of the relevant local authority. That speaks to section 17(5) of the Licensing Act 2003, which deals with regulations relating to the advertisement of applications. It does not deal with the vicinity of objections; it deals with the notification of applications. It is important for me to put that on the record, to ensure that there is no misinterpretation of the clause.
I am grateful to the hon. Lady for allowing me to set out how the provision operates and to speak to her concerns on whether this would not apply for someone on the other side of the road who live in a different local authority area, for example, in inner London. This clause is a consequential amendment that was required to deal with the specific points on advertisements, rather than a means of fettering what vicinity might mean.
We carefully considered the issue of vicinity. I remember, as I am sure other hon. Members who were around at the time do, some of the frustrations over the Licensing Act 2003. It seemed to be the case that unless someone lived within 100 feet of the licensed premises, some local authorities would say, “Sorry, you cannot make any representations.” Members of Parliament could not make any representations. It seemed as if it was a means of excluding people, rather than engaging the community and ensuring that it could have its say on licensing applications, which can have a significant impact on a town, area or community.
With the opportunity to rebalance the 2003 Act and look at this again, we decided that the best way to proceed was to remove the vicinity test and leave it open, in the same way that, in a planning application someone does not have to live next door or in the same town to make a representation. The rules are prescribed by the regulatory regime that sits behind applications. For a representation to be relevant, it has to speak to the licensing objectives. Simply saying, “I do not agree with this”, will not get someone very far. An objection has to speak to the four licensing objectives, which the hon. Member for Kingston upon Hull North has rightly highlighted. Equally, it cannot be frivolous or vexatious, as she has also pointed out. On the issue of licence reviews, it cannot be repetitive either, which avoids the risks of someone making a complaint again and again and again as a means of seeking to frustrate a licence.
Steve McCabe: I do not want to detain the Committee, but I do want to understand where the line will be drawn on what is thought frivolous or vexatious. If I have a holiday home that I visit perhaps three or four weeks a year—
Steve McCabe: The hon. Gentleman deserves a wider audience. I am sure he has a much better holiday home, which he visits much more frequently, but if I have one that I visit three or four times a year in the vicinity of a premises with a dispute, although my main residence is several hundred miles away, I would be well within my rights to object to the licence. Is that accurate?
We carefully considered whether a more suitable way to proceed was as in the example relating to the Gambling Act mentioned by the hon. Member for Kingston upon Hull North. Ultimately, we decided that, subject to the protections and the regulatory framework described, the broader approach was better, in many ways because of some of what was rightly highlighted by my hon. Friend the Member for Amber Valley. If we took the sort of approach suggested by the amendment, just such representations might not be available and, therefore, the better approach can be seen in my analogy on planning: it is better to allow people to make representations, but they will be constrained by the framework.
We have considered the impact. I am sure that the Committee has scoured the regulatory impact assessment for this part of the Bill, which shows that the analysis has been undertaken in relation to costs.
Diana Johnson: I am grateful to the Minister for clearly setting out what is in the clause, so that we all understand that any representations are limited to individuals who live in or businesses that operate from a local authority. That only relates to notification, but is not about who can make representations. That was helpful.
The Minister said that he had considered the provisions in the Gambling Act but had decided not to proceed on that basis. However, I have one question arising from his contribution. If people from any part of the country can make representations, how will they be aware that an application or review is in process? How that will work in practice has a bit of a question mark.
James Brokenshire: The hon. Lady makes a fair point. Part of the answer is that such applications and provisions should be published on the websites of local council areas, to ensure a broader sharing of the information, so that people outside the local authority boundary can check and become aware by doing so.
The amendments follow nicely from the exchange between the hon. Lady and the Minister. They are probing amendments to understand what is expected of councils, which are concerned about what might happen. The costs of advertising for councils can be extremely high. In my days as a councillor and the chair of the Cambridge traffic management committee, we would often find that painting a small piece of white line on a road somewhere cost us little for paint but a huge amount for the advert. We are keen to avoid that.
We need to ensure that councils, when they do not have spare money, are not required to spend large amounts on expensive advertising that does not serve a purpose. Of course, I have no problem with advertising that is essential to inform. The question is about the balance. The applicant is also required to advertise, so ensuring that both parties know what is and is not expected of them is important.
I was delighted to hear the Minister say that he is expecting councils to use websites. That is excellent. I hope that he can comment on what else might be needed in both cases. The information should not only be available on a website because, as he knows, there is a digital divide. Even those who do not have access to a website might well have an interest in what is happening. I hope that he can comment on how to ensure that that condition is satisfied.
Diana Johnson: It is interesting that we are dealing with this amendment this morning, in the light of the letter that appears today in The Times from a number of Liberal Democrat council leaders who are obviously very concerned about their budgets and about spending money in an appropriate way, considering the huge reduction in the money that is being made available to them.
The use of a website is to be welcomed, but I want to raise a couple of issues about that. Local councils have lobbied me about the costs of advertising and the hon. Member for Cambridge referred to those costs. For example, advertising in local newspapers can cost councils hundreds of pounds to fulfil their obligations. Obviously, a website is a much cheaper way of advertising.
However, I want to press the Minister on the issue of the digital divide. In areas of the country where access to websites and the internet is more limited, how does he envisage local people being made aware of applications and reviews? There is also the issue of people who have disabilities. As a constituency MP, people have raised with me concerns about the current regime not being accessible to people with various disabilities and I have been asked whether the law could be amended to ensure that all members of communities can access information, in particular about licence applications, which are often very contentious in certain areas. In my constituency, there is an area called Newland avenue where there is great interest in any licence application when it is made, and in any request for a review. People are thirsty for knowledge and information about what is happening and I want to ensure that we are able to get that information to as many of them as possible.
James Brokenshire: I am grateful to my hon. Friend the Member for Cambridge for highlighting that point about information. Information is important, so that we can achieve the sort of community engagement that we want. That builds on the debate that we have already had this morning about stripping away the vicinity test. Now we are debating how communities can be informed and information shared, so that there is that direct engagement between individuals and communities, and they can help to inform and be engaged in the licensing process. Consequently I am grateful to him for tabling the probing amendment, so that I can respond to some of the points that he has made. It is essential that such licensing applications are brought to the attention of the communities likely to be affected by them.
The provisions that we are introducing in the Bill to remove the vicinity test for interested parties will enable any person to make representations regarding licence applications. That is why we introduced provisions in clauses 105 and 107 to require licensing authorities to advertise premises licence and club premises certificate applications, to bring those applications to the attention of anyone likely to be affected by them.
In our response to the consultation document, “Rebalancing the Licensing Act”, the Government committed to require licensing authorities to publish online key information from licensing applications. However, where I perhaps disagree with the approach outlined in my hon. Friend’s probing amendment is about the necessity to put that requirement in primary legislation, as the amendment proposes. In some ways, the amendment
Clauses 105 and 107 introduce provisions for such requirements for advertising to be set out in regulations and we have committed to introduce a requirement for licensing authorities to publish key information from licensing applications on their websites. Setting out the publicity requirements regarding premises licence and club premises certificate applications in regulations is consistent with the approach taken with primary legislation, whereby such detail is then set out in secondary legislation. That is the right way to do it. It also ensures that the requirements can be amended when appropriate to ensure that they reflect the most effective method of informing the community at the time. In addition, prescribing publicity requirements in regulations allows us fully to consider the practical implications of the requirements on both licensing authorities and businesses.
We are committed to ensuring that unnecessary burdens that might arise otherwise are not placed on business or responsible authorities. It is therefore important that we maintain a flexible approach in the licensing process to ensure that requirements on parties can easily be amended to take into account changes in the way in which things are done. Therefore, we think that it is best to deal with the structure in that way rather than specifying it in the Bill.
Coming to the point about information, I think that there are issues regarding the digital divide and how best to notify people who may not have access to a computer or the internet. We have said that we intend to introduce secondary legislation to require licensing authorities to publish key information from licensing applications online, and we are committed to consult on the proposals.
It is also worth pointing out the current requirements on licence applicants, contrasted with those on local authorities, to publicise information on licence applications. Currently, the Licensing Act 2003 requires licence applicants to advertise their application to bring it to the attention of interested parties likely to be affected by it—hence our earlier debate on interested parties and the definitional change that we debated earlier in our deliberations. How applications should be published is currently set out in the Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005. They contain a requirement for applicants to display a notice of the application on the premises and publish a notice in a local newspaper or newsletter.
Diana Johnson: I wonder whether the Minister will consider making the information available in local libraries. I think that we are all conscious of the need to encourage people to use their local libraries, to have them as a centre for making information available and, with the closures that seem to be coming down the road rather quickly, to ensure that more is going into libraries so that they can continue to exist. Will he look particularly at addressing the issues of libraries and putting that in the Bill?
James Brokenshire: I admire the ingenuity of the hon. Lady in seeking to bring libraries into this debate about licensing. Certainly, that has been sought for community resources that I and everyone else have in our local
Dr Huppert: It has been helpful to hear the Minister’s comments on the direction of travel. I think that we have established quite clearly our intention to ensure that the burden on councils is not excessive—many of us would rather they spent money on libraries than on advertising in newspapers. I take entirely his point and share the concern that mandating the exact form of advert in primary legislation causes problems, as newspapers are fading, and websites are current. I am not sure we yet want to write into legislation to mandate the use of Twitter to advertise. I beg to ask leave to withdraw the amendment.
Steve McCabe: I would like to make a couple of quick points before we get to the conclusion of the clause. I do not doubt the Minister’s intentions, but I do not feel, from what we have heard so far, that we have had an explanation on some of the questions posed by quite a wide range of bodies.
I understood the Minister’s point about the frustrations that local representatives might sometimes feel about an application. However, it seems that he has contrived to make it possible for a person to make representations or to raise an objection without having any obvious interest in the site, and without being affected by the activities of the site in any obvious way. That seems fundamentally wrong. The clause permits a person who, in theory, could be located hundreds of miles from licensed premises, to make a representation. I do not see why the Government intend to do that. It seems a funny demonstration of localism from a Government who talk so much about it.
The provision gives all sorts of potential for lobbying across the country from special interest groups, or possibly from people with a commercial interest that could be disguised. It will be immensely costly for the person who is applying for the licence to try to defend themselves. We are told daily to support community pubs, but this is a recipe that will put enormous pressure on people. The Government have explained why they want to change the existing vicinity test, but not why they want to open it up to challenges from almost anywhere across the country.
There is an issue about advertising and the need to ensure that the application is brought to the attention of all persons who may be affected. The Minister is right to state his intention to bring forward subsequent regulations, but as things stand, unless he produces a draft of those measures so that the Committee can see them before discussions on the Bill are concluded, we will be passing a measure without having any idea about how it will be implemented and what it will cost. That is hardly a good use of parliamentary scrutiny, and it does not suggest that those who will be directly affected by the legislation can be confident that what we agree on today will not have an adverse effect on them once the final picture of what the Minister intends is revealed.
Diana Johnson: I pay tribute to my hon. Friend, who has raised some important questions about the clause. Will the Minister tell us what the effect on local authorities will be of the widening of the representations? What approach should local authorities take to ensure that the frivolous and vexatious are weeded out at an early opportunity? What additional resources will be required to ensure that they can deal with a potential avalanche of representations from national bodies, particularly the anti-alcohol and anti-drinking groups that may target local authority licensing committees with extensive information and representations that need to be considered?
James Brokenshire: The contributions we have just heard about the clause are interesting. It is back to the old school—it is about restricting and preventing representations from being made, rather than engaging the public and allowing people to have their say about the applications. The hon. Member for Birmingham, Selly Oak suggested that we should seek to impose restrictions on those representations. Would he say that about planning issues, for example? Would he say to his constituents, “We need to be more restrictive about the representations that people make on planning applications that come before us”? That is a prescriptive approach. I am not trying to mischaracterise the hon. Gentleman or put words into his mouth, but that seems to be the approach that he suggests.
Steve McCabe: If I gave the Minister that impression, that was an error. It is reasonable to expect that the person making the representation should prove some obvious connection or interest, otherwise we are opening the door to people anywhere in the country who might have objections that have nothing to do with the specific site and the specific activity. I do not think that the Minister has that in mind and I do not want him to end up in a hole that he did not intend to get himself into.
James Brokenshire: I am obviously grateful to the hon. Gentleman for trying to help us ensure that the clause will give effect to our intention. However, as I explained— and why I made my point about the Gambling Act 2005—such a test would inhibit or prevent people from making representations. That cuts both ways. To pick up on the point made by the hon. Member for Kingston upon Hull North about potential representations, a positive representation could be made, as happens with planning applications, saying that it is a good idea that something should happen in the community. The matter is very much one of giving the discretion to communities to say positively or negatively what they think of an application. Such discretion is not given at the moment. The clause allows people to say how much they support their local pub, how they want it to continue and why an application should be granted in respect of something. It is about discretion, and I am surprised by the hon. Lady’s seeking to restrict it.
Diana Johnson: I am not trying to restrict such action, but I want to know the Government’s view on how much more work for the licensing authority such a measure will produce. What additional resources will it need? How much additional time will be needed to consider licence applications? I am trying to get a feel
James Brokenshire: The reality is that it will probably not add as much time as the hon. Lady thinks it will. She can look at the figures in the impact assessment in relation to relative burdens. It is a point of principle whether “vicinity” can be prescribed in a wider sense, and we concluded that that would not quite work and that we would always be restricted to taking account of the point made by my hon. Friend the Member for Amber Valley in the previous debate and how some things can have a wide impact outside a geographical area. Even if the hon. Lady were minded to take that line of argument, how could she prescribe it in such a way that did not restrict people making representations along the lines of the example that was well made by my hon. Friend?
Nigel Mills: I am grateful to the Minister for his remarks. Does he agree that the Licensing Act encompasses a huge range of activities that need licences? We must not think only of a friendly local pub but, say, a hugely controversial lap dancing bar in a prominent place in a town. In such circumstances, we all recognise that people who visit a town would have a right to comment about the impact it might have on them if they were walking children past the site. If we base a vicinity test on proximity to the site, it would be hard to let people in that situation make a valid objection, which is why an application for new premises in such circumstances, as proposed under the clause, is right and a great improvement.
James Brokenshire: I am grateful for my hon. Friend’s support, and I appreciate why the subject has been an issue for him, given his community and constituency interests. That underlines our thinking and approach to the provisions. The clause is important, and will allow representation and engagement under the Licensing Act, so I hope that the Committee will ensure that it stands part of the Bill.
Nigel Mills: I probably signalled that I have different views on the clause from those that I had on clause 105. The Government are going too far with the application for a review. If a planning application for a building is approved, no matter how much I might have disliked that building going up next to me, I cannot object every six months to its existence and try to get it taken down; it is a one-off process. Whereas with a premises license, in theory I can object regularly to the fact that these premises still exist in some way that I dislike. While it might be entirely appropriate, if I am living next door and experience significant harm, that I get to keep
Steve McCabe: I do not follow the consistency of the hon. Gentleman’s argument, so I have to ask him: if it is perfectly all right for anyone to object initially, and restricting that in any way would restrict people’s rights to representation, why is that not the case when it comes to objecting at the review stage? What has changed?
Nigel Mills: When I am making a new application, it is quite right that the council must go through a process to decide whether to grant me those premises, and at that point I have made no significant investment. However, once those premises are there and I am running something, I have made a significant investment—I have a huge amount to lose if there is a scurrilous request to change, and that makes the context different.
Steve McCabe: The point I am putting to the hon. Gentleman is that if, from 100 miles away, I objected to his premises getting a licence in the first place, and I am objecting at some point in the future—say 12 months later—am I not even more justified in saying, “I was right to object; look at all the problems it’s caused”? The fact that he has invested in these premises and stands to lose—although personally I think that is tragic—has nothing to do with the discussion here.
Nigel Mills: I understand the point that the hon. Gentleman is trying to make. However, when you make an application, there must be a process that the council goes through to decide whether to grant it. Allowing the same person 100 miles away to request a review creates a process that otherwise may not exist. If someone 100 miles away is so concerned about the harm that this site is causing, one would expect the near neighbours of the site to object and request a review as well.
The distinction I am trying to draw is that when you make an application there is a process that must be followed, and representations can be received from anywhere and considered or rejected. When giving the power to request reviews, we want them to be raised by people—or their representatives—who are actually suffering real harm from those premises. So those reviews are not just by national campaign groups. If you go back to the lap dancing argument that I made, people have very strong moral objections to those sites, but if a licensing authority decides to accept one for a period, we do not want continual moral objections to it—without the facts really changing—from people who do not live anywhere near and are not affected.
We all want licensed premises to be well built, pleasant places to visit, with significant investment to ensure that there are none of the potential harms we might worry about, but we are creating a real risk for people who set them up that they can be subject to regular review by people who are not experiencing any harm.
Nigel Mills: Two-tier questions are interesting. I am trying to draw a distinction, but where we perhaps could have two tiers is on an initial application and then at request for review. I would not be so concerned if a review is requested by someone living near a site and then additional representations are made from people living further away. However, allowing people who are not suffering any harm from a site the right to request a review puts in place a process whereby the council has to decide whether to allow it.
I know that vexatious, frivolous or repetitive requests can, in theory, be dismissed, but that requires a process. I can imagine that campaign groups will then challenge whether their requests were really frivolous, repetitive or vexatious. If the Government reconsider reviews, we may end up with a better result. Do they really want this huge range of power and the risk of councils facing repeated requests for reviews in situations where it is unlikely that they would ever proceed with them or make any changes?
James Brokenshire: I hear the point that my hon. Friend makes, but the point that the hon. Member for Birmingham, Selly Oak made about the consistency of thinking and clarity is fair and valid, and I agree with him.
I refer my hon. Friend the Member for Amber Valley to section 51(4) of the Licensing Act 2003, which deals with repetitious representations—the main point about which he is concerned. I recognise the point, and that is why the Act took that on board, and local authorities already have the responsibility and ability to ignore representations that are frivolous or vexatious. As I have indicated, we will be looking at further guidance to help local authorities with their interpretation of the provisions and to add further clarity.
I hope, therefore, that my hon. Friend will recognise the need to ensure that local authorities have that support. I also hope that he will appreciate the clarity and certainty, rather than the bureaucratic process that the hon. Member for Kingston upon Hull North suggested when she mentioned a two-tier approach, and accept that the methods in Bill are as they should be.
Diana Johnson: The Government are keen on localism, and we have the Localism Bill going through Committee at the moment. However, does the Minister envisage that more weight should be given to local representations, rather than to those from elsewhere in the country?
James Brokenshire: The representations must be relevant, and, under that approach, they are local, because they relate to a specific licence, pub, club or other outlet. That, along with the four licensing objectives, makes it local. Therefore, for a representation to have teeth, bite and effect, it must have that relevance to the locality. That aids and assists in the approach that she is suggesting.
James Brokenshire: As I think the hon. Lady has already highlighted, for a representation to be relevant in terms of a particular outlet, application or review, it must meet the criteria of the four licensing objectives, which are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. As she knows, that is the basis on which licensing panels make their assessment, and that was the basis on which her Government set it up. An objection meeting those four requirements has to show evidence, and the council has to take that approach in assessing it. That makes the locality information relevant in assessing against those four tests to see whether they are satisfied.
I repeat that the way in which the 2003 Act is structured points to information that is relevant to the locality. Therefore, if one is living locally, one is probably more likely to have information that is more relevant in satisfying the four tests.
Steve McCabe: If I have it right, clause 108 replicates clause 106, but applies to club premises. There is quite a lot of pressure on social clubs these days because of the number of planning applications relating to housing developments in areas where social clubs may have existed for a number of years. In the Birmingham area, I am aware of objections that have been raised to licensing application renewals for clubs that have existed for quite a long time. In this area, it would be very easy for people to organise objections from quite a wide field. For example, a housing body that has connections throughout the country could quite easily organise to object to the renewal of an existing club’s certificate. What safeguards will be in place to ensure that that kind of activity does not happen as a matter of course, because that would be an unfair use of the power of objection?
James Brokenshire: There is a distinction between making an objection and making a relevant objection. As the hon. Gentleman will appreciate from his knowledge of some of the local issues that social clubs face and from his consideration of objections that may be raised on the renewal of these licences, objections still have to meet the relevant requirements. Therefore, even if the number might go up, the objections still have to be relevant. If they cannot be made on the basis of the
Steve McCabe: Of course, the fact that the number goes up does not, in itself, change the nature of the requirement, but as the number increases, the cost to the club of defending itself against these representations goes up as well, when many such clubs are finding it difficult to survive.
James Brokenshire: That should not be the case because, again, it is about the relevance of the objection; it is about the four specific licensing criteria. Therefore, even if the number of objections goes up and they are of a standard form, it is still a question of going back to the basic principles. If it is a well-run club that has not been causing problems, there is no reason why it should be any more adversely affected under the provisions of the Bill than it is at the moment.
Diana Johnson: The clause is about reducing the burden as regards licences. As we have heard this morning, the general duty on the licensing authority is to promote the four licensing objectives: the prevention of crime and disorder; public safety; the prevention of public nuisance and the protection of children from harm. The clause removes the requirement for any licence conditions to be “necessary” for the promotion of the objectives. The Government seek to reduce the evidence test for the attachment of licence conditions, so that they are “appropriate” rather than necessary.
“This has the effect of reducing the threshold which licensing authorities must meet to achieve the promotion of the objectives, but ensures that their decisions continue to be solely for the purpose of promoting the objectives”.
“concern that the proposal might undermine the fairness of the licensing decision-making process…Among those to respond positively to the proposal, it was felt that reducing the burden of proof would allow licensing authorities to make decisions based firmly on the needs of their locality. Trade representatives were generally opposed to the proposal, based on concerns around natural justice, and questioned the evidence to support”
I want to set out some concerns about what the clause will do. The current requirement for the licensing authority to justify its decisions is necessary to secure the licensing
Steve McCabe: Perhaps I should ask the hon. Member for Northampton North for advice, but I understand that “necessary” has a legal definition and that “appropriate” does not, so we could be stepping into a legal minefield. Is that my hon. Friend’s understanding?
Diana Johnson: My hon. Friend makes an important point, which I will address in one moment. The issue is causing a lot of concern among organisations that will have to use the new licensing legislation, and they want to be clear about its effect.
Let me stress again the need for clear evidence to explain why the clause is necessary. At the moment, I am not clear what that evidence is. There is also concern that the Home Office has asserted in the past that a licensing authority’s actions must be absolutely essential if the authority is to justify them. It has been helpful to look at some of the definitions of the word “necessary”. “Stroud’s Judicial Dictionary of Words and Phrases” makes it clear that “necessary” does not mean absolutely essential or inescapable, but refers to a responsible requirement or a need for something.
One of the many organisations that have made representations on the clause is the Association of Licensed Multiple Retailers. It has received legal advice that moving to the lower test of “appropriate” would allow decisions that are reasonable and expedient to be reached on a subjective view of the situation. My hon. Friend the Member for Birmingham, Selly Oak made the important point that “necessary” has a clear legal definition; there is certainty about what it means in terms of the licensing objectives. If we introduce the clause, those who want to make a legal challenge could have a field day. I am sure that the Government do not wish to open up the possibility of there being many delays and costs as people pursue the definition through the courts.
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