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Lord Hodgson of Astley Abbotts: This is an important set of amendments, relating as it does to Clause 177 and bringing the clause into play in terms of the guidance—which could of greater or lesser importance depending on what is included. The framework guidance which has been made available to us runs to 11 pages and 55 paragraphs. Within that there is either an opportunity for extreme centralisation or alternatively the emergence of local democracy and decentralisation depending on what emphasis is placed on the document.

The document contains a great deal that is unclear. It uses words such as "proportionality"—the pages are not numbered—in connection with premises licences. I am not quite sure what "proportionality" is in relation to a premises licence. Other aspects of the premises licence raise questions. For example, there is a reference to large venues of 1,500 people. It is not clear to me whether 1,500 is a number that will be set in stone for ever or whether it is capable of being altered.

Many personal licence holders operating under a premises licence granted under the terms of the Bill—if capacity is applied to their public houses, and if different levels of capacity are applied to different bars—could have extreme difficulty in managing the flow of people between the different parts of the licensed premises.

My noble friend has raised an important point as to exactly where and how the guidance can be fitted in. It is already lengthy and capable of being extremely prohibitive to local conditions, or alternatively very empowering in terms of local democracy. We need to spend some time considering how this will operate and whether it is not actually the guts of the Bill by proxy in Clause 177.

Lord Renton of Mount Harry: I strongly support what my noble friend has just said and the remarks of my noble friend on the Front Bench. I find a particular sympathy with Amendment No. 83. It would be helpful if in replying to this brief debate the Minister could tell us why precisely this guidance from the Secretary of State is thought to be necessary. Surely the whole essence of having licensing authorities is that they know the local conditions best. It is perfectly understandable if in one area late-night activity is not thought to be a problem whereas in another it can be very objectionable indeed. If licensing authorities are to have a purpose, surely that kind of decision must be left to them.

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What worries me about this is that once again it seems to be a case of "the Minister in Whitehall knows best" and, if necessary, he is going to promulgate and licensing authorities throughout the country are going to have to listen.

Perhaps I may quote a somewhat similar example from my experience as chairman of the Sussex Downs Conservation Board, an interest that I have declared frequently in this Chamber. As many will know, the Government are anxious for the South Downs to be turned into a national park. One of the reasons why there is considerable hesitancy about this is the feeling that in the end the Minister will decide exactly how a national park is to be run, he will appoint most of the members and so forth, rather than trust in the local authorities, the local people who know the conditions, to make the judgments.

Particularly in the case of licensing and the freeing up of the licensing laws—of which I approve—it is worrying if the licensing authorities feel, with reason, that there may be an edict from the centre that does not take account of local conditions. My noble friend on the Front Bench said that Amendment No. 83 was a probing one. It is jolly specific. I wish to know why it is thought necessary that the Secretary of State can administer the guidance at all. Could that not be seen as a threat to the ability of local licensing authorities to make their own difficult decisions about what is appropriate in their own areas?

9.30 p.m.

Lord Brooke of Sutton Mandeville: This grouping is an a la carte menu of amendments directed, broadly speaking, to the same point and purpose. My noble friend Lord Renton of Mount Harry opted for Amendment No. 83. I opt for Amendment No. 84, which was tabled jointly by the Official Opposition and the Liberal Democrats. Having heard the speech of my noble friend Lord Renton of Mount Harry, I thought that he, too, might be supporting Amendment No. 84. I may have misunderstood his speech.

Amendment No. 84 proposes the deletion of Clause 4(3)(b). If, as the Bill implies at present, a licensing authority must have regard to guidance issued by the Secretary of State in the exercise of all its licensing functions, local accountability will be eroded to an unacceptable extent. In addition, the legislation would leave unclear the respective roles of the licensing authority's statement of licensing policy, on the one hand, and the Secretary of State's guidance, on the other.

Assuming that Clause 177 stands part of the Bill, licensing authorities will be required to have regard to the Secretary of State's guidance when formulating policy. But, having done so, it seems to me that the statement of licensing policy should guide the determination of licensing applications. If a local authority did not have regard to the Secretary of State's guidance, it could be subject to judicial review in the manner to which my noble friend Lady Buscombe referred. That course of action, if it were followed, would contribute to the Bill's aim of ensuring local democratic decision-making in determining licence applications.

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The test of the proposition is that, alternatively, if the local authority's licensing policy is at variance with the Secretary of State's guidance or vice versa, the magistrates at appeal level will have to determine both the policy and the facts of the individual case. That cannot be right if the principle of democratic accountability is, in any genuine sense, to be maintained as, I assume, the Government still intend—if I may give them the benefit of the doubt.

Lord Renton of Mount Harry: My noble friend is absolutely right. I was incorrect in saying that I supported Amendment No. 83. I was speaking to Amendment No. 84.

Lord Brooke of Sutton Mandeville: Rarely do I have the effect of changing the speech of any of my colleagues on these Benches. I am extremely grateful to my noble friend for telling me that I did on this occasion.

Lord Redesdale: I shall speak briefly. I thought that Amendment No. 84, to which my name is attached, would be grouped with the next set of amendments. I will therefore speak to it with the next group.

The Lord Bishop of Portsmouth: I hope very much that the Government will consider these amendments carefully, and that they provide the type of safeguards discussed in the context of amendments to previous legislation. I hope that they will be pursued properly.

Lord McIntosh of Haringey: I shall try to set out the hierarchy of responsibilities in Clauses 4, 5 and 177, on which there is confusion—no doubt, that is the Government's fault, as is everything else. The noble Baroness, Lady Buscombe, queried the phrase in Clause 4, "with a view to promoting". Clause 4 states:

    "A licensing authority must carry out its functions . . . with a view to promoting the licensing objectives".

That means that it has no choice. It is not a weak provision; it is a strong requirement. We have now passed the four licensing objectives. The committee has approved them as the bedrock on which the activities of licensing authorities will be based.

Clause 5 relates to the statement of licensing policy, which is enormously important. However, it is produced by the individual licensing authority. It sets out over a three-year period—the detail of which we shall come to shortly—the way in which the licensing authority interprets the four licensing objectives in the context of its own area. It has to do so with a degree of transparency that is set out in detail in the clause. It also has to consult; it has to publish; it has to argue; and it has to be prepared to listen to representations. Generally speaking this is, if you like, the local responsibility element of the way of which licensing policy is delivered.

Finally, there is Clause 177, which deals with guidance. Everyone has read the Framework for Guidance. I should remind the Committee that guidance is not legislation; it is a document produced by the Secretary of State that is designed to secure that

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no unnecessary conflicts exist between the licensing policies set out by different licensing authorities. It also sets out the kind of issues that licensing authorities must consider when they are producing such a policy. The phrase for that is quite deliberately "have regard to"; in other words, when we are talking about guidance, which is neither legislation nor an instruction, the words "have regard to" are appropriate because the authority retains an ultimate discretion to depart from the guidance.

If an authority departs from the guidance, it has a public duty to show that it has had regard to the guidance—that is to say, that it has taken it seriously and used it in the process of formulating its objectives. Those are the three levels, as it were, through which we arrive at the basis upon which licensing authorities take individual decisions.

We should now look at the amendments before the Committee. They work in two opposite directions, which is perhaps a feature of the grouping rather than anything else. Amendments Nos. 81 and 83 would remove the obligation for a licensing authority to "have regard to" its own licensing statement, which has been determined and published under Clause 5. Amendment No. 84 would remove the obligation on a licensing authority to have regard to the guidance issued by the Secretary of State; in other words, if you take the two provisions together as you would with Amendment No. 81, or if you take them separately as you would with Amendments Nos. 83 and 84, the licensing authority is left in limbo. A licensing authority would not have to pay any attention to its own statement, and it would not have to pay any attention to the guidance issued by the Secretary of State.

However, Amendment No. 82 works in completely the opposite direction. It says that a licensing authority should "take into account" both provisions, rather than "have regard to" them. The Bill provides flexibility. However, the requirement to "take into account" would place a stronger obligation on licensing authorities to take on board all the relevant sections of the guidance and of licensing policies, and would leave them open to challenge if they failed to do so. The requirement to "have regard to" more fully reflects the fact that there will be certain circumstances in which licensing authorities will have reason to depart from the guidance.

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