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Lord Clarke of Hampstead: My Lords, I support Amendment No. 22 and inform the House that I shall not move Amendment No. 24 which stands in my name.

We now have the benefit of the draft guidance which includes a section on cumulative impacts that is very welcome. Like other noble Lords, I am grateful to my noble friend the Minister for producing the guidance, albeit a little late. The guidance clearly states that local authorities may take the cumulative effects of a build-up of late night premises in an area into account when looking at individual licensing applications. However, the guidance is only a draft and subject to change. Furthermore, as the Government have not addressed cumulative impact on the face of the Bill, I believe that Amendment No. 22 is necessary to strengthen and support the Bill. As I say, the guidance is welcome, but it must be seen for what it is—guidance.

In Committee I said that, as this further objective was not clearly spelt out, it would be difficult for people within communities to have very much confidence in what was proposed by the Government as they set about liberalising the licensing laws. Since we discussed the matter in Committee, I have had limited consultation with representatives of local

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government in the North West of England, the South, various parts of London, the Midlands and with the LGA itself. There was one common response; namely, that if an objective of the liberalisation measure was to protect amenity and people living in communities, why should the Government resist putting that on the face of the Bill? People all over the country ask what is the problem with that.

I do not propose to set out in detail the various concerns that people have regarding the Bill as that was dealt with in a previous long and detailed debate, as other speakers said. The reasons for protecting the amenity of an area have been well rehearsed. When the Chamber discussed the matter previously, I asked my noble friend the Minister whether she would sympathetically consider the proposed amendments. It is clear to me—and, I am sure, to the House—that she has considered what was said. I am grateful to her for moving towards the position whereby people, local authorities and all concerned have to take into account the protection of amenity when dealing with licensing applications. This evening I ask her to take one further small step for communities who are concerned at what is being suggested and agree to place the proposed additional objective on the face of the Bill.

Lord Avebury: My Lords, I agree with the noble Lord, Lord Clarke, that we should express our gratitude to the Minister for the better guidance which has now been offered, and particularly for the references in it to cumulative impact. However, I am sorry to say that the effect is spoilt entirely by a particular paragraph. Having said that local authorities are entitled to consider cumulative impact and that that might lead a licensing authority to consider whether the grant of any further premises licence or club premises certificate would undermine one of the licensing objectives, the measure states that the Bill allows for that but with the proviso that cumulative impact has to be addressed in the context of the individual merits of any application. That means that the licensing authority could not say to the applicant, "We think you're splendid people. Your management of other clubs is absolutely impeccable, but we're going to refuse this application on the grounds that there are already enough such premises in our particular district". That is a serious defect in the guidance.

I also wanted to renew my request to Ministers to say something about the DEFRA inquiry. I asked earlier and the noble Lord, Lord McIntosh, who was answering on that amendment, ignored my request. It is extremely relevant to the amendment. The note about the research being conducted stated that:

    "The objective is to enable DEFRA to anticipate any likely difficulties in the control of noise by local authorities and the licensed trade that may arise from the new legislation".

If that is not relevant to the question of amenity, I cannot imagine what is.

I was a little concerned when I had a letter from the Minister only today in which she said that the DEFRA report on issues relating to the night-time economy is not produced with a view to dealing with,

    "the impact of this Bill, but to produce a best practice guide for industry in relation to noise".

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Which is right? Is it the note on the research issued by the company itself, or the letter from the Minister? There is a conflict between the two that I am unable to resolve. Will the Minister help me?

Will the research see the light of day before the Bill has left Parliament altogether? I asked another Minister whether we could see it on Report, which is obviously not possible now. Will another place be able to see it? Will the DEFRA research be produced some time in the summer, when it will be far too late for it to have any effect on our proceedings? It seems as though we have not got joined-up government. Both the DEFRA report on noise and the ODPM consultation on the A3 user class are highly relevant to the Bill. We have complained in the past that we did not have the guidance, and we now have that. Let us have the other two pieces of key information necessary in order that the House can evaluate the Bill.

Lord Brooke of Sutton Mandeville: My Lords, I shall be extremely brief. My first observation will be in support of the noble Lord, Lord Avebury. I can recall the exchange with the noble Lord, Lord Whitty, on the subject of the DEFRA report. I can recall that the noble Lord, Lord Whitty, said that its purpose was to underpin the guidance. I can recall asking him whether, as the guidance was promised by Report, that meant that the DEFRA report would be available to us by that time as well. He said—in this sense, I acknowledge the amulet that he provided for himself—that he was not making any commitments that had not been made by Ministers on the Bill in relation to the subject. On the other hand, from the words he used it seemed as though the report would come out at the same time as the guidance. I shall not dwell on that any further.

I can recall supporting the noble Lord, Lord Clarke of Hampstead, on the previous occasion. I appreciate that I am obsessive about the West End and the stress area of Soho and Covent Garden, but I again remind the Minister in the context of the amendment that not only is the West End a great place for drinking and entertainment in licensed premises, it is the centre of theatreland for the country, let alone for London. There is no question but that people are put off coming to the theatre in the West End by what they have to step over or round if they do so. I cite that too in support of the amendments tabled by my noble friend and the noble Lord, Lord Phillips.

7.15 p.m.

Baroness Blackstone: My Lords, I genuinely want to be helpful in replying to this short debate, so I will speak at some length. I will repeat some of what was said in Committee, but it bears repeating.

Each of the amendments has a slightly different effect. The intention that lies behind them is for licensing authorities to be able to take into account the effect of a number of licensed premises on the amenity of a particular area.

I shall deal with the amendments' specific effects for a moment. Amendments Nos. 22 and 24 both seek to add a fifth licensing objective, which is the protection

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of the amenity of the area in the case of Amendment No. 22, and the protection of residential amenity in the case of Amendment No. 24. My noble friend Lord Clarke has kindly said that he will not press Amendment No. 24 and wishes to support Amendment No. 22. Amendment No. 23 seeks to remove the prevention of public nuisance as a licensing objective and replace it with a balancing exercise, to be performed by the licensing authority, between the amenity of the area on the one hand and the leisure benefits to be derived from the premises on the other.

In our view, it is not the accumulation of licensed premises in and of itself that causes the concern that has led to the amendments, but the consequences that can sometimes flow in practice from that accumulation. The licensing objectives address the ways in which experience has shown that problems can arise from the co-existence in one area of a number of licensed premises. Of particular relevance in the matter are the licensing objectives of the prevention of crime and disorder and the prevention of public nuisance. The choice of licensing objectives derives from experience in current licensing decision-making. They represent the reference against which the licensing authority will balance competing specific interests to reach a decision in relation to an application that is in the overall public interest.

The Government are committed to ensuring that licensing authorities have the powers to address both crime and disorder and public nuisance arising from the carrying on of licensable activities. We have consulted widely with interested parties including, most recently, the Local Government Association and the London boroughs of Westminster and Camden to determine whether the powers in the Bill are sufficient for those purposes. In Committee, I indicated that if appropriate we intended to table an amendment on Report to ensure that any shortcomings were addressed.

As a result of the consultations that we have undertaken, our policy has developed. We have tabled amendments to Clauses 7 and 13, and I will return to those later. Further, in the draft guidance that we have made available to the House, we have incorporated clear statements on the way in which a licensing authority's policy may be developed where the cumulative effect of licensed premises in an area impacts on the objectives. Again, I will return to that when we reach the appropriate point.

First, let me say a little about how the Bill already allows licensing authorities to take into account the cumulative effect of licensing on the amenity of an area. As I stated earlier, the licensing objectives, particularly the prevention of public nuisance and the prevention of crime and disorder, are directed at the problems that can arise in practice from the accumulation of licensed premises in an area. Taking public nuisance as an example, the noble Baroness, Lady Buscombe, drew our attention in Committee to what case law had to say on the matter, namely that,

    "any nuisance is public which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects".

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I have not read all the legal textbooks that the noble Lord, Lord Phillips of Sudbury, has read on the subject. However, I understand that the expression "public nuisance" has been chosen in the Bill as it is well known, flexible and capable of application in a huge range of circumstances. There is developed case law on the matter, and case law will continue to develop in relation to the provisions of the Bill.

Perhaps it has occurred to the noble Lord that one reason why few cases deal with noise nuisance from clubs and pubs is that licensing controls are, on the whole, effective. The current law allows the licensing authorities to impose conditions relating to disturbance and noise nuisance; they do so and they enforce them. There is no reason necessarily to go to the courts because licences can also be revoked, and they sometimes are. Under the Bill, a review could lead to exactly the same result.

It would not be desirable to set in stone in the Bill what will constitute a public nuisance, partly because it is not possible to cover every eventuality, and partly because what constitutes a public nuisance will vary from place to place and neighbourhood to neighbourhood. The licensing authority, informed by the experts, needs to be in a position to determine what constitutes public nuisance in each individual case. In certain circumstances it may well be that some lower-level nuisance—such as the slamming of car doors by patrons leaving the premises late at night—has to be taken into account. I say to the noble Lord, Lord Phillips of Sudbury, that public nuisance is not just about acid-house parties or raves, as was argued in Committee and as he repeated tonight, although it might include those types of nuisance. However, it includes many others as well.

The Bill allows for that necessary flexible approach. As was stated in the guidance that we have made available to the House,

    "the 2003 Act requires licensing authorities and responsible authorities to make objective judgements about what constitutes nuisance and what is needed, in terms of conditions attached to premises licences and club premises certificates to prevent it. These will not be easy judgements"—

my noble friend Lord McIntosh made this point earlier—

    "as one man's enjoyable music is another man's irritating noise. It is therefore important that in applying the relevant objective tests, licensing authorities and responsible authorities focus on impacts of the licensable activities at the relevant premises on people living, working and sleeping in the vicinity that are unreasonable".

I hope that noble Lords will recognise that that is a considerable improvement on, and development of, the original framework guidance, and a helpful clarification of the Explanatory Notes.

The noble Lord, Lord Avebury, and the noble Baroness, Lady Buscombe, asked about the DEFRA research. I believe that the letter that I sent to the noble Lord, Lord Avebury, is correct. That research is not about the impact of the Bill; it is about the adequacy of existing noise legislation. It involves general research that examines the impact of noise from pubs and clubs. I hope that that clarifies the point.

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Similarly, the ODPM's considerations on the A3 class in the planning context have taken into account issues involving the Bill. We have a joined-up approach with both departments that are considering these questions.

I assure the noble Lord, Lord Avebury, that the licensing authorities will have the power to decline a new licence of a particular type when a cumulative effect relating to that type of premises is shown to exist. It does not allow the licensing authorities to reject applications out of hand without proper consideration. I am sure that that is what noble Lords want.

I firmly believe that our approach will give licensing authorities the ability to address the concerns that lie behind the amendments while retaining the concept of balance expressed in Amendment No. 23. There will be no need for residents to suffer "night after night", as my noble friend Lord Clarke of Hampstead suggested in Committee; they will be able to ask for a review of the licence relating to the offending premises. Nor will the noble Lord, Lord Phillips, have to resort to appearing at his local in his pyjamas to get himself heard—where premises are giving rise to the sorts of discomfort that are defined in the licensing statement, he will be able to call for a review. I am sure that he would do so pretty quickly if he were unhappy about a particular premises. The powers that a licensing authority has following a review are considerable.

What the Bill is not designed to address, however, is the behaviour of patrons after they have left the vicinity of the premises. I repeat what I said in Committee: it would be neither practical nor reasonable to expect the Bill to do so. It is pretty easy to see how a licensee might encourage sensible, decent and respectful behaviour as individuals are leaving his or her premises, even when they are getting into their cars and driving away. However, that influence becomes quickly attenuated. It is at that point that the onus for good conduct should fall squarely on the individual, and it is on the individual that enforcement efforts should be focused.

The licensee can and should demand good behaviour from customers while they are on or in the vicinity of the premises. He or she can encourage and request his or her customers to behave when they are beyond the scope of such demands—when they are on the way home or going to another venue. However, he or she cannot exert absolute control over individuals when they have left the vicinity of the premises and are, for example, several hundred yards away. That is why the Government are equipping the police with additional tools to control anti-social behaviour.

I should refer in this regard also to the amendments that we have tabled on the issue of the cumulative effect. The amendments add the local planning authority to the list of responsible authorities identified in Clause 13 which would be required to be notified of, and have the opportunity to make representations on, all licence applications. That will provide an additional voice in the area of public nuisance, particularly that arising from any

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cumulative effect that might exist. The amendments also require the licensing committee under Clause 7—we shall come to this later, but it is appropriate to mention it in this context—to consult other committees of the local authority when making decisions in respect of matters that concern not only the licensing functions but other functions of the authority. That will provide further opportunities for consideration of the cumulative effect of a licensing decision. That is, of course, underpinned by the statements made in the guidance, which now makes it clear that where a licensing authority can demonstrate that a cumulative effect exists in its area which impacts on its duty to carry out its licensing functions, the licensing authority can frame its licensing statement accordingly.

In summary—I am sorry to have taken some time, but I thought that doing so would be helpful—I understand the concerns that lie behind the amendments. However, I believe that they are unnecessary because the Bill already allows licensing authorities to deal with the practical problems that can flow from a growth in the number of licensed premises in an area. In the light of what I have said about the existing powers in the Bill and the steps we have taken to make clear its adaptability to local circumstances, I hope that the amendment will be withdrawn.

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